# U n i t e d S t a t e s C o u r t o f A p p e a l s

F O R T H E D I S T R I C T O F C O L U M B I A C I R C U I T



### Arg ued January

13, 2011 Dec ided J une 21, 2011

No. 07-5178

A R K A N 

### M O H A M M E D 

### A L I E T A L 

### ., A P P E L L A N T S



### v.

D O N A L D 

### H. R

U M S F E L D 

### , I

N D I V I D U A L L Y 

### , E T A L 

### ., A P P E L L E E S



### Consolidated with 07-5185, 07-5186, 07-5187

Appea ls from the United States District Court for the D istrict of Columbia (No. 05c v01378)

Cecillia D. W

ang arg ued the cause for the appellants. Lucas Guttentag

, Jennifer Chang Newe ll

, Kate Desorme au , Steve n R. Shapiro

, Paul Hoffman

, Jame s P. Cullen

, Bill Lann Lee
, Arthur B. Spitzer

, David Rudovsky and Erwin Chemerinsky wer e on brief.
Stephen A. Saltzburg was on brief for amici curiae National I nstitut e of Military

J ustice et a l. in support of the appe llants.

W illiam J. Ace ves was on brief for amici cu riae Human Rights & Tortu re T rea tment Org anizations in support of the appellants.

### 2

Robert M. Loeb

, Attorney

, Unit ed States Depa rtment of J ustice, arg ued the cause for the appellee s. Barbara L. Herwig
, Mi chael L. Martinez
, Mark E. Nagle

, Stephen L. Brag a an d Ryan E. Bull , Attorney s, wer e on brie f.

Be fore : S E N T E L L E 

### , Chief Judge

, H E N D E R S O N 

### , Circuit Judge , and E D W A R D S 

### , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge H E N D E R S O N



### . Dissen ti n g opinion filed by Senior Circuit Judge E D W A R D S



### . K A R E N 

### L E 

### C R A F T 

### H E N D E R S O N 

### , Circuit Judge : Four Afg han and five I ra qi citizens captur ed and subsequently held in Afg hanistan and I raq, respe ctively

, by the United States milit ary sued Donald Rumsfeld, former Secre tary of the United States Depa rtment of Defense

, and three hi g h-ra nking Army office rs 1 

### (collec t i v ely

, defe ndants) under the Fifth and Eig hth Amendments to t he United States Constit ution, the Alien Tort Statute (ATS), 2 8 U. S.C. § 1350, and the Third and Four th Gene va Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, seeking damage s and decla

ratory relief as the result of their trea tment while in U.S. custody

. The district court g rante d the defe ndants’

mo t i o n t o dismiss all six claims and the plaintiffs appea l the dismiss al of their constitutional and ATS claims only

. For the

rea sons set forth below, we aff irm the district court’s judgme nt.

A r m y L i e u t e n a n t G e n e r a l R i c a r d o S a n c h e z , c o m m a n d e r o f t h e 1

“ C o a l i t i o n J o i n t T a s k F o r c e

- 7 ” f r o m J u n e 2 0 0 3 t o J u l y 2 0 0 4 a n d “ t h e h i g h e s t

- r a n k i n g U

. S

. m i l i t a r y o f f i c i a l i n I r a q , ” A m

. C o m p l

. ¶ 2 8 ; J a n i s K a r p i n s k i

, c o m m a n d e r o f t h e “ 8 0 0 t h M i l i t a r y P o l i c e B r i g a d e , ” w h i c h

w a s r e s p o n s i b l e f

o r d e t e n t i o n f

a c i l i t i e s i n I r a q , f

r o m a p p r o x i m a t e l y J u n e 2 0 0 3 t o M a y 2 0 0 4 ; a n d C o l o n e l T h o m a s P a p p a s , c o m m a n d e r o f

t h e “ 2 0 5 t h M i l i t a r y I n t e l l i g e n c e B r i g a d e ” w h o i n N o v e m b e r 2 0 0 3

a s s u m e d c o m m a n d o f t h e “ J o i n t I n t e r r o g a t i o n a n d D e b r i e f i n g C e n t e r ”

a t A b u G h r a i b p r i s o n n e a r B a g h d a d

, I r a q

. I d

. ¶ ¶ 2 9

- 3 0

.

### 3

I.

The amende d complaint alleg es the following fac ts. Arka n Mohammed Ali is an I raqi citizen who was held at Abu Ghra ib and other milit ary fac iliti es in I raq for almost one y ear , from
approx i m at el y J uly 2003 to J une 2004. Am. Compl. ¶ 17. He alleg es he was beat en to the poi nt of unconsciousness; stabbed and mutilated; stripped naked, hooded and confine d in a wooden phone b o o th -sized box ; subjected to prolong ed sleep depriva tion enfor ced by

beating s; deprived of

adequate food a

nd water and

s u bjected to mock execution and death threa ts. Id. Thah e Mohammed Sabar is an I raqi citizen who was held at Abu Ghra ib a nd other milit ary fac iliti es in I raq for about six months from approximately J uly 2003 to J an u ar y 2004. Id. ¶ 18. He alleg es he was severel y beate n, sexually assaulted and h u m iliated, deprive d of adequate food and water , intentionall y exposed to dang erously high tempera tures for prolong ed periods and subjected to mock executions and death threa ts. Id. Sherza d Ka mal Khalid i s an I raqi citiz en who was held at Abu Ghra ib and other milit ary fac iliti es in I raq for about two months from approximately J uly 2003 throug h September 2003. Id. ¶ 19. He alleg es he was fre quently and sever ely beate n, sexually assaulted and threa tened with anal rape , deprive d of adequate food and water , inte ntionally exposed to dang erously high tempera tures and subjected to “m ock executions, death threa ts

. . . and prol ong ed sleep depriva tion enfor ced by b ea t i n gs.” Id. Ali H. is an I raqi citizen who was held at Ab u Ghra ib and other milit ary fac iliti es in I raq for about four wee ks from Aug ust to S eptember 2003. Id. ¶ 20. He alleg es the U.S. milit ary intentionally withheld an d delay ed nece ssary medical
trea tment, intentionally inflicted “pain afte r surg ery by drag g ing h i m fr o m one location to another and forc efully ripping awa y the surg ical dressing ,” intentionally exposed him to infec tion by leaving his surg ical wound half-ba ndag ed and deprive d him of adequa te food and wa ter. Id. Najee b Abbas Ahme d is a n I raqi citizen who was held at Abu Ghra ib and other milit ary fac iliti es

### 4

in I ra q for two separ ate periods, the first from approximately May 2003 to J uly 2003 and the second from approximately J uly 2 0 0 3 throug h Dec ember 2003. Id. ¶ 21. He alleges U. S

. soldiers held a g un to his head, threa ten ed h i m with death and with life i mprisonment at Guantanamo Bay , sexually assaulted him, s t ep p ed and sat on his body while he was in extreme
rest raints, humiliated him by chanting rac ial epithets while videotaping and photogr aphing him, held him in an outdoor cag e at tempera

tures exceeding approx i m ately 120 deg ree s Fa hrenhe it, intentionally deprive d him of sleep for prolong ed periods, confiscated medication for his high blood pressure and hear t disease and intentionally deprived him of medical car e afte r he “suff

ere d more than one h ea rt att ack and a possible stroke in d et ention.” Id. Mehboob Ahmad is a citizen of Afg hanistan who wa s held by the U.S. military at the dete ntion fac ility located at Ba g ram Air For ce Ba se (B ag ram) and at other milit ary fac iliti es in Afg hanistan for approximately five months from J une to November 2003. Id. ¶ 22. He alleg es U.S. soldiers plac ed h i m in restra ints and posi tions calc ulated to cause pain, intimi dated him with a vicious dog

, questioned him while he

was naked, threa tened his family and subjected him to sensory depriva tion. Id. Said Nabi Siddiqi is a citizen of Afg hanistan who was also held at milit ary fac iliti es in Afg hanistan, including Bagram and the Kanda har detention fac ility

, from J uly to Aug ust 2003. Id. ¶ 23. He alleges h e wa s beate n, place d in restraints and positions calc ulated to cause pain, subjected to “v er bal abuse of a sexual nature ,” humiliated by being
p hotogr aphed naked, denied water , intentionally deprive d o f

nece ssary medicati on, intentionally exposed to dang erous tempera tures for prol o n ged periods and deprived of sleep. Id. Mohammed Kar im Shirulla h is a citizen of Afg hanistan who was he ld at Ba g ram a

nd other military fac iliti es in Afg hanistan for approximately six months, from Dec ember 2003 to J une 2 0 0 4

. Id

. ¶ 24. He alleg es he was beate n, place d in restra ints and positions calc ulated to cause p ain, interrog ated and

### 5

photogr aphed while naked, subjected to sensory depriva tion and place d in solitary confine ment for an exte nded period, denied medical car e for injuries cause d by abuse, intentionally exposed
to extreme tempera

tures for prolong ed periods, doused with cold
water and deprive d of sleep. Id. Haji Abdul Rahman is a citizen of Af ghanistan who was held at Ba g ram and other milit ary fac ilit ies in Afg hanistan for approximately five months, from Dec ember 2 0 0 3 to May 2004. Id. ¶ 25. He alleg es he was q uestioned and photogr aphed while naked, subjected t o complete sensory depriva tion for twenty -four ho u rs , place d in solitary confine ment and depr ived of slee p. Id.

The plaintiffs orig inall y fi l ed separ ate actions in four differ ent ju

r is d ic ti o n s

—

the District of Connecticut, the Norther n District of I llinois

, the District of South Carolina and the Southern District of Texas. By an order dated J une 17, 2005, the J udicial Panel on Multidi strict L itigation transfe rre d the case s to the district court of the District of Columbi a for coordina ted and consolidated pretria l proce eding s pursuant to 28 U.S.C. § 1407. The plaintiffs filed an amende d complaint o n J anuar y 5, 2006. They alleg e the de fenda

nts: (1) formulated or implemented policies and prac tices that cause d the torture and other crue l

, inhuman or deg rading trea tment of Plaintiffs; and (2) had eff ective command and control of U.S. milit ary personne l in I raq and/or Af g hanistan and kne w and had re ason to know of torture and abuse by their subordinates and failed to promptly and eff

ectively prohi b it, preve nt and punish unlawful c onduct.

Id. ¶ 26. The plaintiffs asser ted six cause s of ac t i o n i n the district court; five asser

ted claims for violations of (1) the Due Process Clau s e o f the Fifth Amendment, (2) the Fifth Amendment and Eig hth A mendment prohibitions ag ainst crue l and unusual punishment, (3) the l aw of nations prohibition
ag ainst torture, (4) the law of nations prohibition ag ainst crue l,

### 6

inhuman or deg rading trea tment and (5) t h e Gene va Conventions. Am. Compl. ¶¶ 235-59. The six th cause of action
soug ht a decla

ratory judgme nt that defe ndant Rumsfeld violated “the law of nations, binding trea ties and the U.S. Constit ution.” Id. ¶¶ 260-63. I n Marc h 2006, the defe ndants moved to dismiss the amende d complaint pursuant to Rules 12(b)( 1) and 12(b)( 6)

o f the Fe dera l Rules of Civil Procedur e (F RCP ) for lack of subject matter jurisdiction and failure to state claims upon which relief may be g rante d. 2



### On Marc h 27, 2007, the district court dismiss ed the plaintiffs’ amende d complaint pursuant to FRCP 12(b)( 1) and 12(b)( 6) “and on the g round that the defe ndants are entitled to qualified immunit y .” In re Iraq & Afghanistan Detainee s Liti g. ( Detainee s Liti g. ), 479 F. Supp. 2d 85, 119 (D.D.C. 2 0 07). Reg arding the constitutional c laims br oug ht pur suant to Bivens

v. Six Unknown Named Agents of Fede ral Bureau of Narcotics
, 403 U.S. 388 (1971), the district court held the Fifth and Eig hth 3 

### Amendments do no t ap p ly to “nonre sident aliens who wer e i n j ured extraterritorially while detained by the milit ary in

A d d i t i o n a l l y , d e f

e n d a n t s K a r p i n s k i a n d S a n c h e z a r g u e d t h e 2

p l a i n t i f f s ’ c l a i m s r a i s e n o n

j u s t i c i a b l e p o l i t i c a l q u e s t i o n s a n d d e f e n d a n t P a p p a s a r g u e d t h e c o n s t i t u t i o n a l c l a i m s a g a i n s t h i m s h o u l d b e d i s m i s s e d b e c a u s e t h e p l a i n t i f f s ’ a l l e g a t i o n s f

a i l e d t o c o n n e c t h i m t o
t h e a l l e g e d c o n s t i t u t i o n a l v i o l a t i o n s a n d a l l c l a i m s a g a i n s t h i m s h o u l d b e d i s m i s s e d f

o r l a c k o f p e r s o n a l j u r i s d i c t i o n

. B e c a u s e i t d i s m i s s e d t h e
p l a i n t i f f s ’ c a s e s o n o t h e r g r o u n d s , t h e d i s t r i c t c o u r t c o n s i d e r e d t h e s e

a r g u m e n t s m o o t

.

“ T h e h o l d i n g i n B i v e n s p e r m i t s a p l a i n t i f f t o b r i n g a n a c t i o n i n 3

f e d e r a l c o u r t a g a i n s t a f

e d e r a l o f f i c e r / e m p l o y e e f

o r t h e v i o l a t i o n o f

h i s

c o n s t i t u t i o n a l r i g h t s

. 4 0 3 U

. S

. a t 3 8 9

. A B i v e n s s u i t i s t h e f e d e r a l

c o u n t e r p a r t o f a c l a i m b r o u g h t p u r s u a n t t o 4 2 U

. S

. C

. § 1 9 8 3 a g a i n s t

a s t a t e o r l o c a l o f

f i c e r / e m p l o y e e f

o r t h e v i o l a t i o n o f t h e c l a i m a n t ’ s

c o n s t i t u t i o n a l r i g h t s

. ” R a s u l v

. M y e r s , 5 1 2 F

. 3 d 6 4 4

, 6 5 2 n

. 2 ( D

. C

. C i r

. )

, v a c a t e d

, 1 2 9 S

. C t

. 7 6 3 ( 2 0 0 8 )

.

### 7

fore ign countries wher e the United States is eng ag ed in war s.” 4


### Detainee s Liti g. , 479 F. Supp. 2d at 95. The court relied on the United States Supreme Court’s holdings in Johnson v. Eisentrager
, 339 U.S. 763 (1950), and United States v. VerdugoUrquidez

, 494 U.S. 259 (1990), and Zadvydas v. Davis
, 533 U.S. 678 (2001), and on our holding in Boumedie ne v. Bush

, 476 F.3d 981 (D.C. Cir

. 2 0 0 7 ), rev’ d

, 553 U.S. 723 (2008). The court 5

T h e d i s t r i c t c o u r t a l s o h e l d t h a t t h e p l a i n t i f f s ’ E i g h t h 4

A m e n d m e n t c l a i m f

a i l e d “ n o t o n l y b e c a u s e t h e p l a i n t i f f s a r e p r e c l u d e d f r o m i n v o k i n g t h e C o n s t i t u t i o n

. . . , b u t a l s o b e c a u s e t h e E i g h t h
A m e n d m e n t a p p l i e s o n l y t o c o n v i c t e d c r i m i n a l s ” a n d t h e p l a i n t i f f s

“ w e r e n e v e r c o n v i c t e d o f a c r i m e

. ” 4 7 9 F

. S u p p

. 2 d a t 1 0 3 ( c i t i n g I n g r a h a m v

. W

r i g h t , 4 3 0 U

. S

. 6 5 1

, 6 6 4 ( 1 9 7 7 ) )

. O n a p p e a l t h e p l a i n t i f f s c o n t e n d t h e i r E i g h t h A m e n d m e n t c l a i m i s c o g n i z a b l e

. B e c a u s e w e a f

f i r m t h e d i s t r i c t c o u r t ’ s d i s m i s s a l o f t h e E i g h t h
A m e n d m e n t c l a i m o n o t h e r g r o u n d s , w e d o n o t r e a c h t h i s a r g u m e n t

.

I n E i s e n t r a g e r , t h e S u p r e m e C o u r t h e l d t h a t G e r m a n n a t i o n a l s 5

w h o w e r e i m p r i s o n e d a t a U

. S

. a r m y b a s e i n G e r m a n y a n d c o n v i c t e d

o f w a r c r i m e s c o m m i t t e d d u r i n g W o r l d W a r I I h a d n o h a b e a s c o r p u s

r i g h t u n d e r t h e U

. S

. C o n s t i t u t i o n

. I n V e r d u g o

- U r q u i d e z , t h e C o u r t h e l d t h a t a M e x i c a n c i t i z e n w h o s e r e s i d e n c e i n M e x i c o w a s s e a r c h e d b y a g e n t s o f t h e U n i t e d S t a t e s D r u g E n f o r c e m e n t A d m i n i s t r a t i o n

c o u l d n o t a s s e r t a c l a i m u n d e r t h e F o u r t h A m e n d m e n t t o t h e U

. S

. C o n s t i t u t i o n

. T h e C o u r t e x p l a i n e d t h a t i t h a d “ r e j e c t e d t h e c l a i m t h a t

a l i e n s a r e e n t i t l e d t o F i f t h A m e n d m e n t r i g h t s o u t s i d e t h e s o v e r e i g n
t e r r i t o r y o f t h e U n i t e d S t a t e s ” a n d d e s c r i b e d h o l d i n g s s u c h a s P l y l e r

v

. D o e , 4 5 7 U

. S

. 2 0 2

, 2 1 0

- 1 2 ( 1 9 8 2 ) ( i l l e g a l a l i e n s r e s i d i n g i n U n i t e d S t a t e s p r o t e c t e d b y E q u a l P r o t e c t i o n C l a u s e )

, a n d K w o n g H a i C h e w

v

. C o l d i n g , 3 4 4 U

. S

. 5 9 0

, 5 9 6 ( 1 9 5 3 ) ( r e s i d e n t a l i e n “ p e r s o n ” w i t h i n

m e a n i n g o f F i f

t h A m e n d m e n t )

, a n d B r i d g e s v

. W i x o n , 3 2 6 U

. S

. 1 3 5
, 1 4 8 ( 1 9 4 5 ) ( r e s i d e n t a l i e n s h a v e F i r s t A m e n d m e n t r i g h t s )

, a n d R u s s i a n V o l u n t e e r F l e e t v

. U n i t e d S t a t e s , 2 8 2 U

. S

. 4 8 1

, 4 8 9 ( 1 9 3 1 ) ( f o r e i g n

c o r p o r a t i o n d o i n g b u s i n e s s i n A m e r i c a e n t i t l e d t o j u s t c o m p e n s a t i o n

u n d e r F i f

t h A m e n d m e n t f

o r p r o p e r t y t a k e n b y U

. S

. g o v e r n m e n t )

, a n d
W o n g W i n g v

. U n i t e d S t a t e s , 1 6 3 U

. S

. 2 2 8

, 2 3 8 ( 1 8 9 6 ) ( r e s i d e n t a l i e n s

### 8

further held that even if the plaintiffs could claim constitutional protec tions, specia l fac tors would counsel ag ainst inferr i n g a Bivens reme dy

. Detainee s Liti g. , 479 F. Supp. 2d at 103-07. I t explained “that milit ary aff airs, fore ign rela tions, and national

secur ity are constitutionally committed to” the President and the Co n g ress and conclude d “that authorizing monetary damag es

reme dies ag ainst milit ary officia ls eng ag ed in an active war would

. . . obstru ct t h e Armed For ces’ ability to act decisively and without hesitation in defe nse of our liberty and n at i o nal

e n t i t l e d t o F i f

t h a n d S i x t h A m e n d m e n t r i g h t s )

, a n d Y i c k W o v

. H o p k i n s , 1 1 8 U

. S

. 3 5 6

, 3 6 9 ( 1 8 8 6 ) ( F o u r t e e n t h A m e n d m e n t p r o t e c t s

r e s i d e n t a l i e n s )

, a s “ e s t a b l i s h [ i n g ] o n l y t h a t a l i e n s r e c e i v e

c o n s t i t u t i o n a l p r o t e c t i o n s w h e n t h e y h a v e c o m e w i t h i n t h e t e r r i t o r y o f

t h e U n i t e d S t a t e s a n d d e v e l o p e d s u b s t a n t i a l c o n n e c t i o n s w i t h t h i s

c o u n t r y

. ” 4 9 4 U

. S

. a t 2 6 9

, 2 7 1

. I n Z a d v y d a s , t h e C o u r t r e a f

f i r m e d t h e

c o n s t i t u t i o n a l d i s t i n c t i o n b e t w e e n p e r s o n s p r e s e n t i n t h e U n i t e d S t a t e s

a n d p e r s o n s o u t s i d e t h e U n i t e d S t a t e s

. T h e C o u r t h e l d t h a t a f e d e r a l

s t a t u t e a u t h o r i z i n g t h e G o v e r n m e n t t o h o l d a n a l i e n w h o h a s b e e n

o r d e r e d d e p o r t e d b e y o n d t h e 9 0

- d a y “ r e m o v a l p e r i o d ” w i t h i n w h i c h

t h e a l i e n i s t o b e d e p o r t e d p e r m i t s t h e G o v e r n m e n t t o h o l d t h e a l i e n f o r

o n l y a “ r e a s o n a b l e t i m e

. ” 5 3 3 U

. S

. a t 6 8 2

. T h e C o u r t e x p l a i n e d t h e

s t a t u t e w o u l d “ r a i s e s e r i o u s c o n s t i t u t i o n a l c o n c e r n s ” i f i t a l l o w e d t h e G o v e r n m e n t t o h o l d i n d e f i n i t e l y a d e p o r t a b l e a l i e n p r e s e n t i n t h e U n i t e d S t a t e s , i d

. , b u t r e i t e r a t e d “ t h a t c e r t a i n c o n s t i t u t i o n a l p r o t e c t i o n s

a v a i l a b l e t o p e r s o n s i n s i d e t h e U n i t e d S t a t e s a r e u n a v a i l a b l e t o a l i e n s

o u t s i d e o f o u r g e o g r a p h i c b o r d e r s , ” r e l y i n g o n E i s e n t r a g e r a n d
V e r d u g o

- U r q u i d e z

. 5 3 3 U

. S

. a t 6 9 3

. I n B o u m e d i e n e , w e h e l d t h a t b o t h S u p r e m e C o u r t a n d o u r o w n p r e c e d e n t “ h o l d [ ] t h a t t h e C o n s t i t u t i o n d o e s n o t c o n f e r r i g h t s o n a l i e n s w i t h o u t p r o p e r t y o r
p r e s e n c e w i t h i n t h e U n i t e d S t a t e s

. ” 4 7 6 F

. 3 d a t 9 9 1

. T h e S u p r e m e C o u r t r e v e r s e d o u r d e c i s i o n i n B o u m e d i e n e a n d h e l d

, f o r t h e f i r s t t i m e , t h a t a l i e n d e t a i n e e s h e l d a t G u a n t a n a m o B a y , C u b a , c a n a s s e r t a h a b e a s c o r p u s r i g h t u n d e r t h e S u s p e n s i o n C l a u s e o f t h e U

. S

. C o n s t i t u t i o n

. 5 5 3 U

. S

. 7 2 3 ; s e e U

. S

. C o n s t

. a r t

. I
, § 9

, c l

. 2 ( S u s p e n s i o n C l a u s e )

. A s s e t f o r t h i n f r a p

. 1 1

- 1 7
, w e d i s t i n g u i s h t h e S u p r e m e C o u r t ’ s B o u m e d i e n e d e c i s i o n

.

### 9

interests.” Id

. at 107, 105. Finally

, the district court held that qualified immunit y protec ted the defe ndants from the Bivens claims beca

use, even if the plainti ffs possess constitutional rig hts, “those rig hts were not clear ly established at the time the alleg ed injurious conduct oc curr ed.” Id. at 108.

As to the Gene va Conventions claims and the alleg ed violation s o f the law of nations broug ht pursuant to the ATS, 6



### t h e district court held that “the defe ndants are entitle d t o absolute immunit y pursuant to the Westfall Act,” acco rd i ng to which Act the Fe dera l Tort Clai m s Ac t (F TCA), 28 U.S.C. §§ 1346, 2671 et s eq. , provides the ex clusive remedy for a tort committed by a fede ral officia l or employ ee within the scope of his employ

ment. 479 F. Supp. 2d at 114. The court conclude d 7 

### the Westfall Act includes an intentional tort, id. at 110-11, and,

T h e A T S p r o v i d e s : “ T h e d i s t r i c t c o u r t s s h a l l h a v e o r i g i n a l 6 j u r i s d i c t i o n o f a n y c i v i l a c t i o n b y a n a l i e n f o r a t o r t o n l y , c o m m i t t e d i n v i o l a t i o n o f t h e l a w o f n a t i o n s o r a t r e a t y o f t h e U n i t e d S t a t e s

. ” 2 8
U

. S

. C

. § 1 3 5 0

.

T h e F e d e r a l E m p l o y e e s L i a b i l i t y R e f o r m a n d T o r t 7

C o m p e n s a t i o n A c t o f 1 9 8 8

, P u b

. L

. N o

. 1 0 0

- 6 9 4

, 1 0 2 S t a t

. 4 5 6 3 ( a m e n d i n g 2 8 U

. S

. C

. § § 2 6 7 1

, 2 6 7 4

, 2 6 7 9 )

, c o m m o n l y r e f e r r e d t o a s
t h e W e s t f

a l l A c t , p r o v i d e s i n p e r t i n e n t p a r t :

U p o n c e r t i f

i c a t i o n b y t h e A t t o r n e y G e n e r a l t h a t t h e d e f e n d a n t e m p l o y e e w a s a c t i n g w i t h i n t h e s c o p e o f h i s

o f f i c e o r e m p l o y m e n t a t t h e t i m e o f t h e i n c i d e n t o u t o f

w h i c h t h e c l a i m a r o s e , a n y c i v i l a c t i o n o r p r o c e e d i n g

c o m m e n c e d u p o n s u c h c l a i m i n a U n i t e d S t a t e s d i s t r i c t c o u r t

s h a l l b e d e e m e d a n a c t i o n a g a i n s t t h e U n i t e d S t a t e s u n d e r
t h e p r o v i s i o n s o f

t h i s t i t l e a n d a l l r e f

e r e n c e s t h e r e t o , a n d t h e U n i t e d S t a t e s s h a l l b e s u b s t i t u t e d a s t h e p a r t y d e f e n d a n t

.
2 8 U

. S

. C

. § 2 6 7 9 ( d ) ( 1 )

. T h e W e s t f a l l A c t m a k e s t h e F T C A r e m e d y

“ e x c l u s i v e o f a n y o t h e r c i v i l a c t i o n o r p r o c e e d i n g f o r m o n e y d a m a g e s

. ” I

d

. § 2 6 7 9 ( b ) ( 1 )

.

### 10

rely ing on the Restatement (Second) of Ag ency § 228 (1958), 8 

### deter mined the defe ndants acte d within the scope of their employ ment beca use “deta ining and in

te r r o g ating enemy aliens”

was “incidenta l to their overa ll milit ary obliga tions.” Id. at 114. The cour t fu rt her ruled that neither the ATS claims nor the Gene va Conventions claims fell within one of the statutory exceptions to the Westfall Act. Id. at 111-13. Acc ording ly

, the
court substitut ed the United States as the defe ndant on the ATS

a n d G eneva Conventions claims and then dismiss ed those c la im s beca use the plaintiffs failed to exhaust their administrative

reme dies as re quired by

the FT CA. Id. at 114-15.

The district court reje cted the plaintiffs’ alleg ation that Gene va Convention I V itself provides a private cause of ac tion and dismiss ed their claims for violations of the Convention for failure to state a claim for relief

. Id. at 115-17. Reg arding their claim for decla

ratory relief, t h e court held the plaintiffs lacke d standing beca

use the named defe ndants no longe r h el d t heir officia l positions in I raq o r Afg hanistan and there fore the plaintiffs could not show “that they fac e a re al and imminent threa t of being wrong ed ag ain in the future” by t hose

T h e R e s t a t e m e n t ( S e c o n d ) o f A g e n c y § 2 2 8 ( 1 9 5 8 ) p r o v i d e s i n 8

p a r t : ( 1 ) C o n d u c t o f a s e r v a n t i s w i t h i n t h e s c o p e o f e m p l o y m e n t i f

, b u t o n l y i f : ( a ) i t i s o f t h e k i n d h e i s e m p l o y e d t o p e r f o r m ; ( b ) i t o c c u r s s u b s t a n t i a l l y w i t h i n t h e a u t h o r i z e d t i m e

a n d s p a c e l i m i t s ; ( c ) i t i s a c t u a t e d

, a t l e a s t i n p a r t , b y a p u r p o s e t o s e r v e
t h e m a s t e r , a n d
( d ) i f f o r c e i s i n t e n t i o n a l l y u s e d b y t h e s e r v a n t a g a i n s t

a n o t h e r , t h e u s e o f f

o r c e i s n o t u n e x p e c t a b l e b y t h e

m a s t e r

.

### 11

defe ndan t s

. Id. at 118. Additionally

, the court held the plaint i ff s , having sued the defe ndants in their individual
capa cities only

, could not seek decla ratory relief

. Id. at 118-19. 9



### The plaintiffs timely filed a notice of appea l on May 24, 20 0 7
, challenging the district court’s dismiss al of their constitutional and AT S cl aims and its dismiss al of their claim for decla ratory relief

. They do not appea l the dismiss al of their Gene va Conventions claims.

II.

I n revie wing the district court’s grant of a motion to dismiss

, we acc ept as true the fac tual alleg ations of the plaintiffs’ complaint and revie w the dist ri ct court’s leg al conclusions de novo. Daniels v. Union Pac. R.R. Co.

, 530 F.3d 936, 940 (D.C. Cir. 2008) (“We revie w the district court’s leg al conclusions de novo

. . . [a n d] acc ept as true the fac ts that [t he plaintiffs] alleg e[] in [ their] complaint in reviewing the di strict court’s dispositi on of the defe ndants’ motion to d i smiss.” (alter ations in orig inal) (interna l quotation marks omitted)). We addre ss seriatim the plaintiffs’ constitutional c laims, their ATS claims and their c laim for dec lara tory relief

. A. The Bivens Claim s

Eac h plaintiff asser

ts two Bive ns claims, namely

, the d ef en dants tortured him in violation of his due proce ss rig ht under the Fifth Amendment and the defe ndants’ con d u ct constituted crue l and u n u sual punishment in violation of the Eig hth Amendment. Am. Compl. ¶¶ 235-46. Our decisions in 1 0

T h e c o u r t a p p a r e n t l y o v e r l o o k e d t h e f a c t t h a t t h e p l a i n t i f

f s s u e d 9
d e f e n d a n t R u m s f

e l d i n b o t h h i s i n d i v i d u a l a n d o f f i c i a l c a p a c i t i e s

. S e e A m

. C o m p l

. ¶ 2 7

.

T h e s e c o n d c l a i m a l s o a l l e g e s t h e d e f e n d a n t s ’ c o n d u c t 1 0

c o n s t i t u t e d c r u e l a n d u n u s u a l p u n i s h m e n t i n v i o l a t i o n o f t h e F i f t h

### 12

Rasul v. Mye rs (

Rasul I ), 512 F.3d 644 (D.C. Cir.), vacate d

, 129 S. Ct. 763 (2008), and Rasul v. Myers ( Rasul II ), 563 F.3d 527 (D. C. Cir.) (per curia

m), cert. denied

, 130 S. Ct. 1013 (2009),
g overn our

resolution of these c laims.

I n Rasul I

, four Br itish citizens sued Secre tary Rumsfeld and sever al high- ranking mi l i tary officia ls for damag es arising from thei r al l eged illega l detention and torture at Guantana mo Ba y , Cuba betwee n 2002 and 2004. Rasul I
, 512 F.3d at 649-50. T h ei r complaint included claims under the Fifth and Eig ht h Am endments, the ATS, the Gene va Conventions and the Religious Fr eedom Restoration Act, 4 2 U

. S. C. § § 2000bb et seq. We aff irmed the district court’s dismiss al of the constitutional cl ai m s , ex p l ai n i n g t h a t “ G u a n t an am o d et ai n ee s l ac k constitutional rig hts beca

use they are aliens without proper ty or prese nce in the United States.” 5 1 2 F. 3 d at 663 (citing Boumedie ne v. Bush

, 476 F.3d 981, 984 (D.C. Cir. 2007), rev’ d

, 553 U. S

. 723 (2008))

. Fur thermore

, we conclude d the defe ndants wer e protec ted by qualified immunit y beca use, even assuming arguendo the detainee s possessed rig ht s u n der the Fifth and Eig hth Amendments, those rig hts wer e n o t clearly established at the time of their detention and alleg ed torture. Id.

A m e n d m e n t

. I t i s u n c l e a r , h o w e v e r , h o w t h i s c l a i m d i f f e r s f r o m t h e p l a i n t i f f s ’ f i r s t c l a i m t h a t t h e d e f

e n d a n t s v i o l a t e d t h e F i f

t h A m e n d m e n t b y e n g a g i n g i n t o r t u r e

. A l t h o u g h a n i n d i v i d u a l n o t y e t c o n v i c t e d o f

a c r i m e m u s t c h a l l e n g e h i s t r e a t m e n t o r t h e c o n d i t i o n s o f h i s

c o n f i n e m e n t u n d e r t h e D u e P r o c e s s C l a u s e o f t h e F i f t h o r F o u r t e e n t h
A m e n d m e n t s r a t h e r t h a n t h e E i g h t h A m e n d m e n t , s e e C i t y o f R e v e r e

v

. M a s s

. G e n

. H o s

p

. , 4 6 3 U

. S

. 2 3 9

, 2 4 4 ( 1 9 8 3 ) ; I q b a l v

. H a s t

y , 4 9 0
F

. 3 d 1 4 3

, 1 6 8 ( 2 d C i r

. 2 0 0 7 )

, r e v ’ d o n o t h e r g r o u n d s u b n o m

. A s h c r o f t

v

. I q b a l

, 1 2 9 S

. C t

. 1 9 3 7 ( 2 0 0 9 ) ( c o m p l a i n t f a i l e d t o p l e a d s u f

f i c i e n t f a c t s t o s t a t e c l a i m f

o r r e l i e f ) ; E s t a t e o

f C o l e b y P a r d u e v

. F r o m m , 9 4
F

. 3 d 2 5 4

, 2 5 9 n

. 1 ( 7 t h C i r

. 1 9 9 6 )

, c e r t

. d e n i e d

, 5 1 9 U

. S

. 1 1 0 9 ( 1 9 9 7 )

, h e d o e s n o t c r e a t e t w o s e p a r a t e c l a i m s u n d e r e i t h e r D u e P r o c e s s C l a u s e b y a l l e g i n g b o t h t o r t u r e a n d c r u e l a n d u n u s u a l p u n i s h m e n t

.

### 13

at 665-67. After Rasul I issued, the Supreme Court reve rsed our Boumedie ne decision and held the Suspension Clause extends to nonresident aliens detained at Guantana mo Ba y

. Boumedie ne v. B ush

, 553 U.S. 723 (2008). The Court then vacated our judgme nt in Rasul I and rema nded for further consideration in light of its intervening decision in Boumedie ne

. Rasul v. Mye rs , 129 S. Ct . 763 (2008).

On re mand, we r eaf

firmed our holding that the def endants

wer e protected by qualified im munity and ex plained it was not

n ec es sary to deter

mine whether the Fifth and Eig hth Amendments applied to the plaintiffs. Qualifi ed immunit y 1 1 

### shields a g overnme nt offici al from civil liability if his conduct “does not v i o l ate clea

rly established statutory or constitutional rig hts of which a rea s o n ab le person would have known.” Harlow v. Fitzgerald

, 4 5 7 U.S

. 800, 818 (1982). Even if the Rasul plaintiffs could asser t rig hts under t he Fifth and Eig hth Amendments, we explained, Boumedie ne did not alter the conclusion t h at t hose rig hts wer e not clea rly established at the time of the defe ndants’ challeng ed conduct. Rasul I I
, 563 F.3d at 529-30. The plaintiffs arg ue, as did the Rasul plaintiffs, that the defe ndants should ha

ve known (that is, a rea sonable person would have known) their alleg ed misc o n d u ct violated the Constit ution beca

use it “has long been set t l ed that the

A n o t h e r i n t e r v e n i n g S u p r e m e C o u r t d e c i s i o n

— P e a r s o n v

. 1 1

C a l l a h a n , 1 2 9 S

. C t

. 8 0 8

, 8 1 5

- 1 6

, 8 1 8 ( 2 0 0 9 )

— h e l d t h a t a c o u r t c a n d e c i d e a c o n s t i t u t i o n a l r i g h t w a s n o t c l e a r l y e s t a b l i s h e d w i t h o u t f i r s t d e c i d i n g w h e t h e r t h e r i g h t e x i s t s

. B e f o r e P e a r s o n , c o u r t s f

o l l o w e d t h e S a u c i e r p r o c e d u r e , u n d e r w h i c h t h e y f i r s t h a d t o d e t e r m i n e w h e t h e r
t h e a l l e g e d f

a c t s m a d e o u t a v i o l a t i o n o f a c o n s t i t u t i o n a l o r s t a t u t o r y

r i g h t b e f o r e d e c i d i n g w h e t h e r t h e r i g h t w a s c l e a r l y e s t a b l i s h e d a t t h e
t i m e o f t h e a l l e g e d v i o l a t i o n

. I d

. a t 8 1 5

- 1 6 ; s e e a l

s o S a u c i e r v

. K a t

z , 5 3 3 U

. S

. 1 9 4

, 2 0 1 ( 2 0 0 1 )

.

### 14

Constit ution f

orbids the torture of any detainee .” Appellants’ 1 2


### Br

. 23; see Rasul I

, 512 F.3d at 666. The proper inquiry

, howeve r, is not whether the Constit ution prohibits torture but “whe ther the rig ht s the plaintiffs press under the Fifth and Eighth Amendm ents were cl early established at the time of the allege d v iolations.” Rasul I
, 512 F.3d at 666 (empha sis in orig inal ). As the S upreme Court made clear in Boumedie ne , it had “neve r held that noncitizens detained by our Gover nment in territory over which another country maintains de jure

sovere ignty have any rig hts under our Constit uti o n .” 553 U.S. at 770; see also Rasul II

, 563 F.3d at 530 (“ At t h e t i m e of [t he plaintiffs’] detention, neither the Supreme Court nor this court had ever held that aliens captur ed on fore ign soil and detained bey ond sovere ign U.S. territory had any constitutional rig hts—under the Fifth Amendment, the Eig hth Amendment, or otherwise.” ). As it was not clea rly established in 2004 t hat the Fifth and E i gh th Amendments apply to aliens detained at Guantana mo Ba y —wher e the Supreme Court has since held the Suspension Clause ap p l i es—it plainly was not clea rly established in 2004 that the Fifth and Eig hth Amendments apply
to aliens held in I raq and Afg hanistan—whe re no court has held
any constitutional rig ht applies. As we explained in Rasul II
, the Supreme Cou rt in Boumedie ne “explicitly confine d its constitutional holding ‘only ’ to t h e extraterritorial rea ch of the Suspen s i on Clause” and “disclaimed any intention to disturb exis ting law g overning the extraterritorial rea ch of any constitutional provisions, other than the Suspensi o n Clause.” 563 F.3d a t 529 (quoting Boumedie ne , 553 U.S. at 795). As in

T h e p l a i n t i f

f s a l s o c i t e s e v e r a l “ m i l i t a r y l a w s , r e g u l a t i o n s , a n d 1 2

t r a i n i n g m a t e r i a l s ” p r o h i b i t i n g t o r t u r e w h i c h

, t h e y c o n t e n d

, “ r e i n f o r c e
t h e c o n s t i t u t i o n a l p r o h i b i t i o n a g a i n s t t o r t u r e a n d s e r v e t o p u t m i l i t a r y

c o m m a n d e r s a n d p e r s o n n e l o n n o t i c e o f t h e s o r t s o f a c t i o n s t h a t t h e C o n s t i t u t i o n p r o h i b i t s

. ” A p p e l l a n t s ’ B r

. 2 4

- 2 5

.

### 15

Rasul II
, there fore

, the defe ndants here are protec ted from the plaintiffs’ constitutional claims by qualified immunity

. 1 3



### The plaintiffs contend the Supreme Court in Boumedie n e adopted a flexibl e approa ch that leave s open the p o ssibili ty of the extraterritorial application of constitutional provisions other than t h e S u s pension Clause and claim that our decision in Al Ma q a l eh v. Gates

, 605 F.3d 84 (D.C. Cir. 2010), acc urate ly interpre ts Boumedie ne

. Be cause t h e three alien Ba g ram detainee s in Al Ma q a l eh soug ht habea s corpus relief

, the decision addre sses only the applicability of the S u spension Clause. We nonetheless noted that the Supreme Court’ s Boumedie ne decision “explored the more g ener al questio n of extension of co n s tituti onal rig hts and the concomitant constitutional restric tions on g overnme ntal power exercised extraterritorially and with respe ct to noncitizens.” Id. at 93. The

cou rt d i scussed three fac tors the Supreme Court identified as rele vant in deter

mining the rea ch of the Suspension Clause: “(1) the citizenship and status of the detainee and the adequa cy of the
proce ss throug h which that st atus deter mination was made; (2) the nature of the sites wher e appreh ensi on and then detention took place; a

nd (3) the pr actica l obstacles inher ent in resolving the prisoner’ s entitlement to the writ.” Id. at 9 4 (q uoting Boumedie ne , 553 U.S. at 766). The first fac tor weig hed in favor of extending the h ab ea s corpus rig ht to the three beca use, like the Boumedie ne detainee s, they wer e aliens h el d b y the Americ an milit ary

. Id. at 95-96. Acc ording to the court, the

E v e n t h e p l a i n t i f

f s r e c o g n i z e t h i s a n d a s k u s t o “ a b a n d o n [ o u r ] 1 3

h o l d i n g s t o t h e c o n t r a r y

. ” A p p e l l a n t s ’ B r

. 2 3

. “ T h a t a r g u m e n t i s

m i s p l a c e d b e c a u s e w e a r e , o f c o u r s e , b o u n d t o f o l l o w c i r c u i t p r e c e d e n t

a b s e n t c o n t r a r y a u t h o r i t y f r o m a n e n b a n c c o u r t o r t h e S u p r e m e C o u r t

. ” U n i t e d S t a t e s v

. C a r s o n , 4 5 5 F

. 3 d 3 3 6

, 3 8 4 n

. 4 3 ( D

. C

. C i r

. 2 0 0 6 ) ( p e r c u r i a m )

, c e r t

. d e n i e d

, 5 4 9 U

. S

. 1 2 4 6 ( 2 0 0 7 )

.

### 16

three rec eived less due proce ss than the Boumedie ne detainee s. 1 4 

### Id. The second and third fac tors, howeve r, weig hed ag ainst them. Distinguishing Guantana mo Ba y —wher e, acc ordi n g to the S upreme Court, the Unit ed S tates has de facto sovere ignty

, Boumedie ne , 553 U.S. at 755—the court conclude d “the same simply i s n o t true with respe ct to Ba g ram.” Al Maqaleh

, 605 F.3d at 97. The United States has not demonstrated an intent to exercise s o v er eig nty over Ba g ram “with perma nence .” Id. Moreove r, “B ag ram, indeed the entire nation of Afg hanis tan,

rema ins a theater of war .” Id. The same is true of I raq. The Supreme Court ex p re ssly stated in Boumedie ne that, if Guantana mo Ba y “we re located in an active theater of war , arg uments that issuing th e writ would be ‘imprac tical or anomalous’ wo uld have more weig ht.” 553 U.S. at 770. We conclude d “that under both Eisentrager and Boumedien e , the [habeas corpus] writ does not extend to the Ba g ram confine ment in an active theater of war in a terri t o ry u n der neither the de facto nor de jure sovere ignty of the United States and within the territory of another de jure sovere ign.” Al Maqaleh

, 605 F.3d at 9 8

. Thus, even under the plaintiffs’ view of Boumedie ne , we have nonetheless held that the Suspension Clause does not apply
to Ba g ram detainee s. They offe r no rea son—an d we see none

T h e A l M a q a l e h d e t a i n e e s ’ s t a t u s w a s r e v i e w e d b y t h e 1 4

U n l a w f u l E n e m y C o m b a t a n t R e v i e w B o a r d ( U E C R B )

, n o t t h e C o m b a t a n t S t a t u s R e v i e w T r i b u n a l ( C S R T ) t h a t r e v i e w e d t h e B o u m e d i e n e d e t a i n e e s ’ s t a t u s

. 6 0 5 F

. 3 d a t 9 6

. A c c o r d i n g t o t h e c o u r t ,

“ p r o c e e d i n g s b e f

o r e t h e U E C R B a f

f o r d [ e d ] e v e n l e s s p r o t e c t i o n t o t h e

r i g h t s o f d e t a i n e e s i n t h e d e t e r m i n a t i o n o f s t a t u s t h a n w a s t h e c a s e

w i t h t h e C S R T

. ” I

d

. T h e A l M a q a l e h d e t a i n e e s h a d n o r e p r e s e n t a t i o n

w h i l e t h e B o u m e d i e n e d e t a i n e e s h a d “ p e r s o n a l r e p r e s e n t a t i v e [ s ]

. ” A l
M a q a l e h v

. G a t e s , 6 0 4 F

. S u p p

. 2 d 2 0 5
, 2 2 7 ( D

. D

. C

. 2 0 0 9 )

, r e v ’ d

, 6 0 5
F

. 3 d 8 4 ( D

. C

. C i r

. 2 0 1 0 )

. A d d i t i o n a l l y , t h e A l M a q a l e h d e t a i n e e s

w e r e n o t p e r m i t t e d t o s p e a k i n t h e i r d e f e n s e b u t c o u l d s u b m i t o n l y a

w r i t t e n s t a t e m e n t a n d w e r e n o t i n f o r m e d o f t h e e v i d e n c e a g a i n s t t h e m

s o t h a t t h e y l a c k e d a m e a n i n g f u l o p p o r t u n i t y t o r e b u t t h e e v i d e n c e

. I d

.

### 17

ourselves—w hy the plaintiffs’ Fifth and Eig ht h Amendment claims would be any strong er than the Suspension Clause claims of the B ag ram de tainees.

The plaintiffs urg e us to follow the now-optional Saucier
pro cedur e and decide

, first, whether they have “alleg ed a depriva tion of a constitutional rig ht at all,” Pearson
, 129 S. Ct.
at 816 (interna l quotation marks omitted), althoug h we may

u l t i m ately conclude any such rig ht was not clea rly established
at the time of the defe ndants’ alleg ed misconduct. The Saucier 1 5



### proce dure, howeve r, is not appropr iate in most case s. Often “it is plain that a constitutional rig ht is not clea rly est ab l i s h ed but far from obvious whether i n fa ct there is such a rig ht.” Id. I n such a case , deciding the exis tence of the constitutional rig ht vel

non is “an essentially aca demic exercise,” id.

, that “runs counter
to the older, wiser judicial counsel not to pass o n q u es t i ons of constitutionalit y

. . . unless s uch adjudication is unavoidable,” id. at 821 (ellipsis in orig inal ) (i n t ernal quotation marks and citations omitted), and results in the “substantial expenditure of

scar ce judicial resour ces on difficult ques tions that have no effect on the outcome of the case ,” id. at 818. The Sau ci er approa ch can also prec lude an aff ecte d party from obtaining appellate revie w of a decision t hat could si g nificantly aff ect its

W e r e c o g n i z e t h a t t h e S a u c i e r a p p r o a c h i s “ o f t e n b e n e f

i c i a l ” 1 5

a n d h e l p s “ p r o m o t e [ ] t h e d e v e l o p m e n t o f c o n s t i t u t i o n a l p r e c e d e n t

. ”
P e a r s o n , 1 2 9 S

. C t

. a t 8 1 8 ; s e e a l s o C a m r e t a v

. G r e e n e , 1 3 1 S

. C t

. 2 0 2 0

, 2 0 3 2 ( 2 0 1 1 )

. A s t h e S u p r e m e C o u r t e x p l a i n e d

, i n s o m e c a s e s

“ t h e r e w o u l d b e l i t t l e i f a n y c o n s e r v a t i o n o f j u d i c i a l r e s o u r c e s t o b e h a d ” b y d e c i d i n g o n l y t h e “ c l e a r l y e s t a b l i s h e d ” p r o n g

. P e a r s o n , 1 2 9 S

. C t

. a t 8 1 8

. F o r i n s t a n c e , i t s o m e t i m e s c a n b e “ d i f f i c u l t t o d e c i d e

w h e t h e r a r i g h t i s c l e a r l y e s t a b l i s h e d w i t h o u t d e c i d i n g p r e c i s e l y w h a t
t h e c o n s t i t u t i o n a l r i g h t h a p p e n s t o b e

. ” I d

. ( q u o t a t i o n m a r k s a n d

c i t a t i o n o m i t t e d )

. I n o t h e r c a s e s , t h e e x p l a n a t i o n t h a t a r i g h t w a s n o t

c l e a r l y e s t a b l i s h e d “ m a y m a k e i t a p p a r e n t t h a t [ t h e a l l e g a t i o n s ] d o n o t

m a k e o u t a c o n s t i t u t i o n a l v i o l a t i o n a t a l l

. ” I d

.

### 18

future a ctions. Id. at 820. I f a c ourt dec ides that the def endant violated the plaintiff’s constit u t i onal rig ht but is entitled to qualified immunit y beca

use the rig ht was not clea

rly established
at the time, the “pre vailing” defe ndant presumably would not be able to appea l the adver se constitutional h o lding. Id. (citing Kalka v. Hawk

, 215 F.3d 90, 96 n.9 (D.C. Cir

. 2 000) (“N orm ally

, a party may not appea l from a favor able judgme nt.”)); cf. Camreta v. Gre ene , 131 S. Ct . 2020, 2028-33 (2 011) (off

icial who preva ils on qualified immunit y in distric t
court may not be able to obtain appellate rev iew, notwithstanding availability of cer tiorari revie w to officia l who
preva ils on qualified immunit y on appea l). As in Rasul II
, we believe “[c]onsi d er ations of judicial restra int favor exercising the Pearson option with reg ard to [t he] plaintiffs’ B i ve n s claims.” 563 F .3d at 530.

I n Rasul II we h ad an alterna tive basis—apar t from qualified immunit y

—on which to dismiss the plaintiffs’ Bivens claims—that “fe dera l courts cannot fashion a Bive n s action when ‘spec ial fac tors’ cou n s el ag ainst doing so.” 563 F.3d at 532 n.5. We deter

mined th e “d anger of obstructing U.S. national secur ity policy is one such fac tor” that counsels ag ainst allowing a Bivens claim to proce ed. Id. The same rational e 1 6 

### applies here

. The district court corr ec t l y conclude d that

1 7 

### allowing a Bivens action to be broug ht ag ainst Americ an milit ary officia ls eng ag ed in war would disrupt and hinder the ability of our arme d forc es “to act decis i v el y and without hesitation in defe nse of our liberty and nation al interests.”

W e c o n c l u d e d t h a t t h i s a l t e r n a t i v e r a t i o n a l e w a s “ a l s o 1 6

u n a f f e c t e d b y t h e S u p r e m e C o u r t ’ s B o u m e d i e n e d e c i s i o n

. ” 5 6 3 F

. 3 d

a t 5 3 2 n

. 5

.

A g a i n , t h e p l a i n t i f

f s u r g e u s t o “ a b a n d o n ” o u r h o l d i n g i n R a s u l 1 7

I I o n t h i s p o i n t a s w e l l

. A p p e l l a n t s ’ B r

. 3 5

.

### 19

Detainee s Liti g. , 479 F. Supp. 2d at 105. The Supreme Court long a g o rec og nized as much in Eisentrager :
Such trials would hamper the war eff

ort and bring aid and comfort to t h e enemy

. They would diminis h the prestig e of our commander s, not only with enemies but with wave ring neutra ls. I t would be difficult to devise

more effective fetter ing of a field commander than to all o w the very enemies he is order ed to reduc e to submissi on to call him to acc ount in his o wn ci v il

cou rt s and divert his eff orts and attention from the milit ary offe nsive abroa d to the leg al def ensive at home. Nor is it unlikely

that the re sult of such ene my litigiousness would be a conflict between judicial and milit ary opinion highly comforting to enemies o f t h e United States.

339 U.S. 763, 779 (1950). And in Sanchez- Espinoza v. Reagan
, 770 F.2d 202, 209 (D.C. Cir. 1985), our court noted t h at “the specia l needs of fore ign aff airs must stay our hand in the

cre ation of damag e reme dies ag ainst milit ary and fore ign policy officia ls for alleg edly unconst i t u t ional trea tment of fore ign subjects causing i n

j u ry abroa d.” I n Sanchez- Espinoza
, Nicar ag uan citizens, none of whom resided in the United States, sued, inter alia

, the President, the CI A direc tor, the then-c urre nt

as well as former secr etar ies of state and the then-se cretary of defe nse alleg ing they h ad “author ized, financ ed, trained, direc ted and knowing ly provided substan t i al assistance ” to Nicar ag uan rebe l s who eng ag ed in “summary execution, murder, abduction, torture, rape , wounding

, and the destruction of private proper

ty and public fac iliti es.” Id. at 2 0 5 (q u oting Am. Compl. ¶¶ 31, 81). W e conclude d that “the dang er of fore ign c itiz ens’ using the cour ts in [ such si tuation] to obstruct the fore ign policy of our g overnme nt is sufficie nt l y acute that

we must leave to Congr ess the judgme nt wh ether a damag e

reme dy should exis t.” Id. at 209. As in Rasul II
, we s ee no

### 20

b asis for distinguishing this case from Sanchez- Espino z a

. Acc ording ly

, even if the defe ndants wer e not shi elded by qualified immunit y and the plaintiffs could claim the protec tions

o f the Fifth and Eig hth Amendments, we would decline t o sanction a Bivens cause of action beca use specia l fac tors counsel
ag ainst doing so.

B. Th e ATS Claim s
Rasul II also g overns our resolution of t he plainti ffs’ ATS claims alleg ing violations of the law of nations. I n addition t o their Bivens claims, the Rasul plaintiffs “broug ht three claims for violations of the law of nations pursuant to the [ATS] based

on the defe ndants’ alleg ed i n fl iction of ‘prolong ed arbitra ry detention,’ ‘torture ,’ and ‘cr uel, inhuman or degr ading
trea tment.’ ” Rasul I

, 512 F.3d at 654 (citations omitted). We 1 8 

### deter mined the defe ndants’ alleg ed tortious conduct—“ the d e t e n t i o n a n d i n t e r r o g a t i o n o f s u s p e c t e d e n e m y combatants” —was “incidenta l to [t heir] leg itimate employ ment duties” beca

use it was “the ty

pe of conduct the defe ndants wer e employ ed to eng ag e in.” Id. at 658-59. Be cause the defe ndants had acte d within t he scope of their employ ment, we held the ATS claims “we re proper ly resty led as claims ag ainst the United States that are g overne d b y t h e FTCA” and upheld their dismiss al for failure to exhaust administrative reme dies. Id. at 1 9

S p e c i f i c a l l y , t h e R a s u l p l a i n t i f f s a l l e g e d “ t h e y w e r e b e a t e n , 1 8

s h a c k l e d i n p a i n f

u l s t r e s s p o s i t i o n s , t h r e a t e n e d b y d o g s , s u b j e c t e d t o

e x t r e m e t e m p e r a t u r e s a n d d e p r i v e d o f a d e q u a t e s l e e p , f o o d

, s a n i t a t i o n ,
m e d i c a l c a r e a n d c o m m u n i c a t i o n

. ” R a s u l I
, 5 1 2 F

. 3 d a t 6 5 4

.

I n R a s u l I

I
, w e s t a t e d t h a t w e c o u l d “ s e e n o t h i n g i n t h e 1 9

S u p r e m e C o u r t ’ s [ B o u m e d i e n e ] d e c i s i o n t h a t c o u l d p o s s i b l y a f f e c t o u r d i s p o s i t i o n o f

” t h e p l a i n t i f

f s ’ A T S c l a i m s a l l e g i n g v i o l a t i o n s o f t h e l a w o f n a t i o n s a n d “ t h e r e f o r e r e i n s t a t e [ d ] o u r j u d g m e n t ” w i t h r e s p e c t
t o t h o s e c l a i m s

. 5 6 3 F

. 3 d a t 5 2 8

- 2 9

. T h e p o r t i o n o f R a s u l I t h a t t r e a t s
t h e A T S c l a i m s , t h e r e f

o r e , r e m a i n s c o n t r o l l i n g l a w

.

### 21

660-61 (interna l quotation marks an d b rac kets omitted). The plaintiffs here bring simil ar claims ag ainst simil ar (a n d, in the

case of defe ndant Rumsfeld, identical) defe ndants. And like the Rasul defe ndants who, we held, wer e acting within the scope of
t h eir employ

ment, the defe ndants here —who eng ag ed in the

same cond u ct

— wer e acting within the scope of their employ ment as well. See id. at 654-61. The plaintiffs arg ue the W es tfall Act does not cover “eg reg ious torts that violate jus
cogens norms” beca

use the Act g ra n t s immunit y for a “ ‘neg lige nt or wrong ful act or omission’ ” only

. Ap p el lants’ Br

. 46 (quoting 28 U.S.C. § 2679(b)( 1)). The plaintiffs arg ue “wr ong ful” is ambig uous and shoul d b e i n terpre ted in light of the Act’s leg islative history which, the plaintiffs contend,

reve als “wr ong ful” was not intended to encompa ss eg re gi o u s torts that violate jus cogens norms. We expli citly reject ed this
arg ument in Rasul I

, wher e, while acknow ledg ing the plaintiffs had “plainly alleg ed ‘ser iously criminal’ conduct,” we explained that “the alleg ations of serious criminality do not al t er our conclusion that t he defe ndants’ conduct was incidental to authorized conduct.” 5 1 2 F.3d at 659-60. Acc ording ly

, the district court corr ectly held that the Westfall Act appli ed and

corr ectly substitut ed the United States as the defe ndant under the FTCA. The FTCA “re quired the plaintiffs to file an

2 0

T h e p l a i n t i f

f s a l s o c h a l l e n g e t h e d i s t r i c t c o u r t ’ s h o l d i n g t h a t t h e 2 0

d e f e n d a n t s a c t e d w i t h i n t h e s c o p e o f t h e i r e m p l o y m e n t

. T h e y c o n t e n d

t h a t , “ [ a ] s a m a t t e r o f l a w , t o r t u r e c a n n e v e r f a l l w i t h i n t h e s c o p e o f

e m p l o y m e n t o f t h e U

. S

. S e c r e t a r y o f D e f e n s e a n d h i g h

- r a n k i n g U

. S

. A r m y c o m m a n d e r s

. ” A p p e l l a n t s ’ B r

. 5 6

. T h e y n o n e t h e l e s s r e c o g n i z e
t h e d i s t r i c t c o u r t ’ s r u l i n g i s m a n d a t e d b y o u r p r e c e d e n t a n d “ m a i n t a i n
t h e i s s u e h e r e [ o n l y ] t o p r e s e r v e i t

. ” I d

. T h e y “ r e s p e c t f

u l l y s u b m i t
t h a t t h i s C o u r t ’ s d e c i s i o n s

. . . i n R a s u l I I a n d H a r b u r

y [ v

. H a y d e n , 5 2 2 F

. 3 d 4 1 3 ( D

. C

. C i r

. 2 0 0 8 )

, ] a r e n o t w e l l

- f o u n d e d a n d s h o u l d b e

r e c o n s i d e r e d

. ” I

d

. a t 5 7

. W e a r e o f c o u r s e b o u n d b y c i r c u i t p r e c e d e n t

. U n i t e d S t a t e s v

. C a r s o n , 4 5 5 F

. 3 d 3 3 6

, 3 8 4 n

. 4 3 ( D

. C

. C i r

. 2 0 0 6 ) ( p e r

c u r i a m ) ( “ [ W ] e a r e

. . . b o u n d t o f o l l o w c i r c u i t p r e c e d e n t a b s e n t

### 22

adminis t ra t i ve claim with either the Depa rtment of Def

ense (DoD) or the appropr iate mil i t ary depar tment befor e bring ing suit.” Id. at 661 (citing 28 C.F.R

. § 1 4

. 1 ). “[W ]e view the failure to exhaust administrative reme dies as jurisdictional.” Id. As in Rasul

, the “re cord is devoid

. . . of any sug g estion” the plaintiffs filed an administrati v e claim with DoD or a milit ary depar tment. Id. The dist rict co u rt t h us proper ly dismiss ed the ATS claims under FRCP 12(b)( 1) for lack of subject matter jurisdiction.

The plaintiffs raise one arg ument not addre ssed in Rasul I

or II

. The Westfall Act does not immuniz e a fede ral employ ee/of

ficial from a suit “broug ht for a v i olation of a statute of t he United States under which such ac tion ag ainst an individual is otherwise authorized.” 28 U.S.C. § 2679(b)( 2)(B ). The plaintiffs claim t h e ATS, under which they broug ht their claims for violations of the law of nations

, i s a United States
statute that permits a p ri v ate cause of action ag ainst a fede ral employ ee/of

ficial. There fore

, the plaintiffs contend, th e ir c la ims fall wit hin an exception to the Westfall Act and the y should be
p er m i t ted t o proce ed aga inst the i ndividual defe ndants, not th e United States.

The district cour t in Rasul I reje cted this arg ument, explaining that the ATS “is strictly a jurisdictional statute” that 2 1 

### “does not c onfer rig hts nor does it impose oblig ations or duties that, if violated, would trig g er the Westfall Act’s statu t o ry

c o n t r a r y a u t h o r i t y f

r o m a n e n b a n c c o u r t o r t h e S u p r e m e C o u r t

. ” )

.

T h e d i s t r i c t c o u r t c a l l e d i t t h e A l i e n T o r t C l a i m s A c t ( A T C A )

, 2 1

4 1 4 F

. S u p p

. 2 d a t 3 7

- 3 8

, a n o t h e r n a m e f o r t h e A T S

. S e e E s t a t e o f
A m e r g i e x r e l

. A m e r

g i v

. P a l e s t i n i a n A u t h

. , 6 1 1 F

. 3 d 1 3 5 0

, 1 3 5 6 n

. 5 ( 1 1 t h C i r

. 2 0 1 0 ) ( “ T h e [ A T S ] i s a l s o k n o w n a s t h e A l i e n T o r t C l a i m s A c t ( A T C A )

, a n d t h e A l i e n T o r t A c t ( A T A )

. ” ( i n t e r n a l q u o t a t i o n

m a r k s o m i t t e d ) )

.

### 23

exception.” 414 F. Supp. 2d 26

, 3 7 -3 8 (D.D.C. 2006). The

2 2 

### Supreme Court ha s also reje cted a simil ar arg ument. I n United States v. Smith

, 499 U.S

. 160 (1991), a former Army serg eant and his wife sued the Army doctor who delivered their baby in I taly

, alleg ing the doctor’s negl ige nce cause d brain damag e to the baby

. The United States sou gh t t o substitut e itself as the defendant pursuant to the Gonzalez Act, 10 U.S.C. § 1089, which “prov i d e[d] that in suits ag ainst milit ary medical
personne l for torts comm i t t ed within the scope of their employ ment, the Gover

nment is to be substi t u t ed as the defe ndant and the suit is to proce ed ag ainst the Go v er n ment under the FTCA.” Smith

, 499 U.S. at 1 62-63. Whil e the plaintiffs’ appea l was pending

, the Congr ess enac ted the Westfall Act. The United States then relied on the Westfall Act, rathe r than the Gonzalez Act, to substitut e itself as the defe ndant and the Supr em e Court acc ording ly considere d the Westfall Act’s applicability

. At the time, two courts of appea ls had held that the Gonzalez Act protec ted “only milit ar y medical
personne l who commit tor t s wi thin the United States and not those committing torts abroa d.” Id. at 171. The Smith plaintiffs
arg ued their claim was there fore not prec luded by the Gonzalez Act and that their claim fell within the statutory exception to the Westfall Act beca

use the Gonzalez Act “author ized” their claim. Th e S u p reme Court reje cted the plaintiffs’ arg ument. I t explained that it “nee d not decide whether a tort claim broug ht under state or fore ign law co u l d b e deeme d authorized by the Gonzalez Act” beca

u s e t he plaintiffs’ contention “that a claim for malprac t i ce involves ‘a violation of’ the Gonzalez Act[] is without merit

. No t hing in the Gonzalez Act imposes any obliga tions or dut i es of car e upon milit ary phy sicians. Consequently

, a phy sician alleg edly co mmitt ing malprac tice

W e d i d n o t r e a c h t h e i s s u e o n a p p e a l b e c a u s e t h e p l a i n t i f f s d i d 2 2

n o t a p p e a l t h a t p a r t o f t h e d i s t r i c t c o u r t ’ s d e c i s i o n

. S e e R a s u l I
, 5 1 2
F

. 3 d a t 6 6 1 n

. 1 1

.

### 24

under state or fore ign law does not ‘violate’ the Gonzalez Act.” Id. at 174.

More importantly

, the Supreme Court has clar ified that “the ATS is a jurisdictional statute cre ating no new cause s of action.” Sosa v. Alvarez-Mac hain

, 542 U.S. 692, 724 (2004); id. at 729 (“A ll Members of the Court ag ree that § 1 3 5 0 is only jurisdictional.”). Thus, as with the Gonzalez Act, nothing in the ATS “imposes any obliga tions or duties of car e upon” the defe ndants. Smith

, 499 U.S. at 174; accord Bancoult v. McNamara
, 370 F. S u p p

. 2 d 1, 9 (D.D.C. 2004) (“The plain lang uag e of [t he ATS]

. . . does no t co n fer rig hts nor does it impose obliga tions or dut ies that, if violated, would trig g er the [W estfall Act’s statutory violation] exception.”), aff’d on other grounds

, 445 F.3d 427 (D.C. Cir. 2006) (dism issing complaint

on political question g round), cert. denied

, 549 U.S

. 1166 (2007); Schneide r v. Kissi nger , 3 1 0 F. Supp. 2d 251, 266-67 (D.D.C. 2004) (d i smissi ng complaint on political question
g round but holding, alterna tively

, that ATS “ca nnot be violated for purposes of [W estfall Act’s statutory violation exception] ”), aff’d on other grounds

, 412 F.3d 190 (D.C. Cir. 2005) (af firming dismiss al as political question), cert. denied

, 547 U.S. 1069 (2006). The plaintiffs ask us to ignor e the Supreme Court’s Sosa decision. We ca n no more ignor e Supreme Court 2 3



### prec edent than could the district court. Ac cordingly

, we hold that the plaintiffs’ claim under the ATS alleg es a violation of the law of nations, not of the ATS, and there fore does not violate a

T h e p l a i n t i f

f s c l a i m t h e s t a t u t o r y v i o l a t i o n e x c e p t i o n l a n g u a g e 2 3

o f t h e W e s t f

a l l A c t i s a m b i g u o u s a n d w e m u s t t h e r e f o r e l o o k t o l e g i s l a t i v e h i s t o r y t o d e t e r m i n e i t s m e a n i n g

. B e c a u s e S o s a i s s u e d a f t e r
t h e A T S w a s e n a c t e d

, t h e p l a i n t i f f s c o n t e n d

, i t “ d o e s n o t s h e d l i g h t o n

w h a t C o n g r e s s m e a n t t o i n c l u d e i n t h e s t a t u t o r y v i o l a t i o n e x c e p t i o n

. ”
A p p e l l a n t s ’ B r

. 5 3

.

### 25

statute o f the United States within the meaning of section 2679(b)( 2)(B ). 2 4

A l t h o u g h t h e S u p r e m e C o u r t i n S o s a s t a t e d t h a t “ t h e A T S i s a 2 4 j u r i s d i c t i o n a l s t a t u t e c r e a t i n g n o n e w c a u s e s o f a c t i o n , ” i t n o n e t h e l e s s

c o n c l u d e d “ t h e s t a t u t e w a s i n t e n d e d t o h a v e p r a c t i c a l e f f e c t t h e

m o m e n t i t b e c a m e l a w ” a n d e x p l a i n e d t h a t t h e s t a t u t e ’ s j u r i s d i c t i o n a l

g r a n t “ i s b e s t r e a d a s h a v i n g b e e n e n a c t e d o n t h e u n d e r s t a n d i n g t h a t
t h e c o m m o n l a w w o u l d p r o v i d e a c a u s e o f a c t i o n f o r t h e m o d e s t

n u m b e r o f i n t e r n a t i o n a l l a w v i o l a t i o n s w i t h a p o t e n t i a l f o r p e r s o n a l l i a b i l i t y a t t h e t i m e [ t h e A T S w a s e n a c t e d i n 1 7 8 9 ]

. ” 5 4 2 U

. S

. a t 7 2 4

. T h e C o u r t r e c o g n i z e d o n l y t h r e e v i o l a t i o n s

— v i o l a t i o n o f s a f e

c o n d u c t s , i n f

r i n g e m e n t o f t h e r i g h t s o f a m b a s s a d o r s a n d p i r a c y

— b u t

a s s u m e d t h a t n o t h i n g “ c a t e g o r i c a l l y p r e c l u d e d f e d e r a l c o u r t s f

r o m

r e c o g n i z i n g a c l a i m u n d e r t h e l a w o f n a t i o n s a s a n e l e m e n t o f c o m m o n l a w

. ” I d

. a t 7 2 4

- 2 5

.
A t t h e s a m e t i m e t h e C o u r t h e l d a n e w c a u s e o f a c t i o n c o u l d b e

r e c o g n i z e d u n d e r t h e A T S

, h o w e v e r , i t c a u t i o n e d c o u r t s a g a i n s t d o i n g

s o , n o t i n g t h a t a “ s e r i e s o f r e a s o n s a r g u e f o r j u d i c i a l c a u t i o n w h e n

c o n s i d e r i n g t h e k i n d s o f c l a i m s t h a t m i g h t i m p l e m e n t t h e j u r i s d i c t i o n

c o n f e r r e d b y t h e [ A T S ]

. ” I

d

. a t 7 2 5

. T h e C o u r t n o t e d t h a t i t s “ g e n e r a l

p r a c t i c e h a s b e e n t o l o o k f o r l e g i s l a t i v e g u i d a n c e b e f o r e e x e r c i s i n g i n n o v a t i v e a u t h o r i t y o v e r s u b s t a n t i v e l a w ” a n d s t a t e d i t “ w o u l d b e

r e m a r k a b l e t o t a k e a m o r e a g g r e s s i v e r o l e i n e x e r c i s i n g a j u r i s d i c t i o n
t h a t r e m a i n e d l a r g e l y i n s h a d o w f o r m u c h o f t h e p r i o r t w o c e n t u r i e s

. ”
I d

. a t 7 2 6

. T h e C o u r t e m p h a s i z e d “ t h a t a d e c i s i o n t o c r e a t e a p r i v a t e

r i g h t o f a c t i o n i s o n e b e t t e r l e f t t o l e g i s l a t i v e j u d g m e n t i n t h e g r e a t

m a j o r i t y o f c a s e s

. ” I

d

. a t 7 2 7 ( c i t i n g C o r r

. S e r v s

. C o r p

. v

. M a l e s k o , 5 3 4 U

. S

. 6 1

, 6 8 ( 2 0 0 1 ) ; A l e x a n d e r v

. S a n d o v a l

, 5 3 2 U

. S

. 2 7 5
, 2 8 6

- 8 7 ( 2 0 0 1 ) )

. F o r t h a t r e a s o n , t h e C o u r t f o u n d i t s e l f “ r e l u c t a n t t o i n f e r

. . .
a p r i v a t e c a u s e o f a c t i o n w h e r e t h e s t a t u t e d o e s n o t s u p p l y o n e

e x p r e s s l y

. ” I

d

. A d d i t i o n a l l y , “ t h e p o t e n t i a l i m p l i c a t i o n s f o r t h e f o r e i g n r e l a t i o n s o f t h e U n i t e d S t a t e s o f r e c o g n i z i n g [ a n e w c a u s e o f

a c t i o n u n d e r t h e A T S ] s h o u l d m a k e c o u r t s p a r t i c u l a r l y w a r y o f i m p i n g i n g o n t h e d i s c r e t i o n o f t h e L e g i s l a t i v e a n d E x e c u t i v e B r a n c h e s i n m a n a g i n g f

o r e i g n a f f a i r s

. ” I d

.

### 26

Notwithstanding Sosa ’s plain statement that “the ATS is a jurisdictional statute,” 542 U.S. at 724, the dissent believe s the ATS incorpora

tes the l aw of nations and that a viol ation of t he law of nations thus constitutes a violation of the ATS sufficie nt
to satis fy t h e W estfall Act’s statutory violation exception. See Diss en t ing Op. at 17-25. The responde nt in Sosa advanc ed a simil ar a rg ument—“that the AT S was intended not simply as a jurisdictional g rant, but as authority for the cre ation of a new

cause of action for torts in violation of international law.” 542 U.S. at 713. The Supreme Court reje cted “that re ading [of the ATS as] implausible,” explaining that, “[a]s enac ted in 1789, the ATS g ave the district courts ‘c o gn i z ance ’ of cer tain cause s of action, and the ter m bespoke a g rant of jurisdiction, not power to mold subs t an t i v e law.” Id. Moreove r, the Court noted, the
pos i t ioning of the ATS “in § 9 of the J udiciary Act, a statute otherwise exclusively conce rned with fede ral-c ourt jurisdiction, is itself support for its strictly jurisdictional nature .” Id. The 2 5 

### Court th er efore found it “unsurpr ising

. . . that an authority on the historical origins of t he ATS has written that ‘sec tion 1350 clea rly does not cre ate a statutory cause o f ac t i o n ,’and that the
contra ry sug g estion is ‘simply frivolous.’ ” Id. (quoting Wil liam R. Casto, The Fede ral Courts’ P r o te ctive Jurisdiction over Torts Committed in Violation of the Law of Nations
, 18 Conn. L

. Rev. 467, 479, 480 (1986)) ; see also Casto, sup r a , at 479 (“The [ATS] is purely jurisdictional, and the first Congr ess undoubtedly

understood this to be the ca se.”)

.

I n t h i s r e s p e c t , t h e A T S i s e a s i l y d i s t i n g u i s h a b l e f r o m s e c t i o n 2 5

3 0 1 ( a ) o f t h e L a b o r M a n a g e m e n t R e l a t i o n s A c t o f 1 9 4 7 ( L M R A )

, 2 9
U

. S

. C

. § 1 8 5 ( a )

. S e e D i s s e n t i n g O p

. a t 2 4

. S e c t i o n 3 0 1 ( a ) i s p a r t o f

a n e x t e n s i v e s t a t u t o r y e n a c t m e n t a n d

, a l t h o u g h i t s p e a k s o n l y t o f e d e r a l j u r i s d i c t i o n , o t h e r p r o v i s i o n s o f t h e L M R A e s t a b l i s h

s u b s t a n t i v e l e g a l d u t i e s a n d r i g h t s

. S e e , e

. g

. , 2 9 U

. S

. C

. § § 1 8 6

- 8 7

. T h e A T S

, b y c o n t r a s t , i s a s t a n d

- a l o n e g r a n t o f j u r i s d i c t i o n o n l y

.

### 27

The dissent’s citations to Sosa —and to Filartiga v. Pen aIrala

, 630 F.2d 876 (2d C ir. 1 9 8 0 )— co nfirm t hat t he ATS is a jurisdictional statute only and that any claim broug ht under the ATS alleg es a viol at i o n o f the law of nations and the common law, not of the ATS itself. See Dissenting Op. at 3-4, 12, 18-19.

The dissent contends that Supreme Court prec edent establish i n g “that the domestic law of the United States

rec og nizes the law of nations,” Sosa

, 542 U.S. at 729-30 (citing

case s), “indicate s that sec t ion 1350 itself eff ectively incorpora tes the law of nations,” Dissenting Op. at 19. The Sosa Court’s statement “that the domestic law of the United States

rec og nizes the law of nati o n s , ” howeve r, is best understood to ref er to the co m m o n law of the United States, not its statutory law. Th e most rec ent prec edent the Court cited to support its
statement co nfirms this understanding

. See Sosa

, 542 U.S. at 730 (“ ‘[I ]nt erna tional disputes imp l i cating

. . . our rela tions with fore ign n at i ons’ are one of the ‘nar row are as’ in which

‘ federal co mmon law ’ continues to exis t.” (ellipsis in orig inal) (empha sis added) (quot i n g Tex. Indus., Inc. v. Radcliff Materials, Inc.
, 451 U.S. 630, 641 (1981)) ); see also Dissenting Op. at 19 (quotin g W illiam A. Fletc her, International Human Rights in American Courts , 93 Va. L . Rev. 653, 665 (2007))

. Sosa unequivoca lly h o l ds that the ATS is a jurisdictional
statute only

. Sosa

, 542 U.S. at 729 (“A ll Members of the Court
ag ree that § 1350 is only jurisdictional.”). A claim brou ght under the ATS there fore does not alleg e “a violation of a statute of the United States” satisfy ing the Westfall Act exception. 28 U.S.C. § 2679(b)(2)( B)

.

C. The Dec larator y Judgme nt Claim

The plaintiffs also seek a decla ration that the acts alleg ed in their amende d complaint are u n l aw ful and violate the U.S. Constit ution, milit ary rules and g uidelines and the law of nations. Am. Compl. ¶ 264(a)

. As discussed s u p ra , howeve r,

### 28

the plaintiffs have not alleg ed a cog nizable cause of ac tion and there fore have no basis upon which to seek decla ratory reli ef. Nor does the Dec lara tory J udg ment Act (DJA), 28 U.S .C. § 2201, provide a

cause of action. I t is a “we ll-established rule that the Dec lara tory J udg ment Act ‘is not an independe nt source of fede ral jurisdiction.’ Rather, ‘the availability of [declara tory ] relief presuppose s the exis tence of a judicially reme diable rig ht.’ ” C&

E Servs., Inc. of W

ashington v. D.C. W

ater & Sewer Auth. , 310 F.3d 197, 201 (D.C. Cir. 2002) (quoting Schilling v. Rogers
, 363 U.S. 666, 677 (1960)) ; see also Skel l y Oi l Co. v. P hillips Petroleum Co.

, 339 U.S. 667, 671 (1950) (“ T h e opera tion of the Dec lara tory J udgment Act is proce dural only

. Congr ess enlar g ed the rang e of reme dies available in the fede ral
courts but did not extend their jurisdiction.” (interna l quota tion marks and c itation omit ted)).

For the fore go i n g rea sons, we aff irm the district court’s judgme nt of dismissal.

So ordered

.

### E DWARDS 

### , Senior Circuit Judge , dissenting: The plaintiffappellants in this case allege that they were subjected to acts of torture and abuse while being detained at U.S. military facilities in Afghanistan and Iraq. Each a ppellant was eventually released without being charged with a crime. Appellants filed suit, alleging civil claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), and the Alien Tort Statute (“s ection 1350” or “ATS”), 28 U.S.C. § 1350, as well as claims for declaratory relief. Following a motions hearing, the District Court granted the appellees’ separate motions to dismiss. See In re Iraq and Afghanistan Detainees Litig. (“ Detainees Litig. ”), 479 F. Supp. 2d 85 (D.D.C. 2007). Although I do not disagree with the court’s judgment dismissing appellants’ Bivens claims and their claims for declaratory relief, I dissent from the court’s disposition of appellants’ claims under section 1350.
Section 1350 says that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations.” In my view, the Supreme Court’s decision in Sosa v. Alvarez-Machain , 542 U.S. 692 (2004), confirms that appellants may pursue a cause of action under section 1350 for deliberate torture perpetrated under color of official author ity, and the Westfall Act does not bar these claims. It is ironic th at, under the majority’s approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350.

* * * *
The Government’s interpretation of Sosa , which is endorsed by the majority, is strikingly incomplete. The Government first cites a passage from Sosa in which the Court says that the ATS “is a jurisdictional statute creating no new causes of action.” Appellees’ Br. at 47 (quoting Sosa , 542 U.S. at 724). From this, the Government concludes that, “[u]nder Sosa , it is indisputable

### 2

the ATS is not a federal statute that is capable of being violated.” Id . at 48.

The Court’s decision in Sosa is much more nuanced than the Government would have it. And Sosa surely does not foreclose actions under the ATS seeking redress for official torture. Rather, contrary to the Government’s claims, Sosa makes the following critical points:
All Members of the Court agree that § 1350 is only jurisdictional. We also agree, or at least J USTICE 

### S CALIA 

### [in his concurrence] does not dispute, that the jurisdiction was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority.

. . . Whereas J USTICE 

### S CALIA 

### sees . . . developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeepi ng, and thus open to a narrow class of international norms today

. Erie [ Railroad Co. v. Tompkins , 304 U.S. 64 (1938),] did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post- Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way.

. . . We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some

### 3

metaphysical cachet on the road to modern realism. Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala , 630 F.2d 876 (2d Cir. 1980), and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic , 726 F.2d 774 (D.C. Cir. 1984). Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power , but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.
542 U.S. at 729-31 (citation omitted) (emphasis added). As this court recently noted in Saleh v. Titan Corp ., 580 F.3d 1 (D.C. Cir. 2009), it is clear that Sosa “opened the door a crack to the possible recognition of new cause s of action under international law (such as, perhaps, torture) if they were firmly grounded on an international consensus.” Id . at 14.
It is particularly noteworthy that the Supreme Court’s opinion in Sosa says: “The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala , 630 F.2d 876 (2d Cir. 1980).” 542 U.S. at 731. Filartiga held that
deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served w ith process by an alien within our borders, § 1350 provides federal jurisdiction.

630 F.2d at 878. The Filartiga court construed section 1350 “not as granting new rights to a liens, but simply as opening the federal courts for adjudication of the rights already recognized

### 4

by international law.” Id . at 887; see also Sosa , 542 U.S. at 730 (stating that “the Court is bound by the law of nations which is a part of the law of the land”) (quoting The Nereide , 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.)); Tel-Oren v. Libyan Arab Republic , 726 F.2d 774, 780 (D.C. Cir. 1984) (Edwards, J., concurring) (“[S]ection 1350 itself provides a right to sue for alleged violations of the law of nations.” (footnote omitted)).
Filartiga is firm in its holding that “there are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state’s power to torture persons held in its custody.” Id . at 881. This court recently echoed this view in Saleh , noting that “torture committed by a state is recognized as a violation of a settled international norm.” 580 F.3d at 15. The Government does not suggest otherwise. So it is clear beyond debate that official torture violates the law of nations.
The fact that the plaintiffs in this case have alleged that United States officials committed torture does not counsel against a cause of action under the ATS. The statute does not exclude claims against state actors. And there is no evidence that recent congressional statutes addressing torture and detainee treatment, respectively, intended to preempt suits under section 1350. In fact, there is evidence to the contrary.
Only one question remains: Does the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), Pub. L. No. 100-694, 102 St at. 4563, bar appellants’ ATS claims from going forward? Af ter careful consideration of Sosa and the case law construing the Westfall Act, I am convinced that the Westfall Act does not bar appellants’ claims. An action that is cognizable under section 1350 falls within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] agains t an individual [are] otherwise authorized,” 28 U.S.C. § 2679(b)(2)(B). The Government argues that section 1350 cannot fall within this exception

### 5

because the ATS is merely a jurisdictional statute. Appellees’ Br. at 47. In my view, Sosa requires the opposite conclusion: Appellants’ claims arising under section 1350 must fall within the statutory exception to the Westfall Act, because the ATS is a federal statute that incorporates substantive international norms and thereby directly authorizes recovery for deliberate torture perpetrated under color of official authority.
The Government ignores the fact that section 1350, unlike the congressional grant of federal question jurisdiction, “was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations.” Sosa , 542 U.S. at 731 n.19. “Unlike section 1331, which requires that an action ‘arise under’ the laws of the United States, section 1350 does not require that the action ‘arise under’ the law of nations, but only mandates a ‘violation of the law of nations’ in order to create a cause of action.” Tel-Oren , 726 F.2d at 779 (Edwards, J., concurring). Section 1350 incorporates the law of nations – including the prohibition against deliberate torture perpetrated under color of official authority – that can be “violated” within the meaning of the section 2679(b)(2)(B) exception to the Westfall Act. I therefore conclude that, on the record before us, the District Court has jurisdiction over appellants’ complaint alleging official torture and the appellant s have a viable cause of action. Consequently, the District Court erred when it dismissed appellants’ claims arising under section 1350.

I. B ACKGROUND 

### A. The United States Has Consistently and Repeatedly Condemned the Use of Torture
“Torture has long been illegal” in our nation. 151 C ONG



### . R EC 

### . 30,756 (2005) (statement of Sen. Graham). Domestically, torture, along with other punish ments of “unnecessary cruelty,” has been proscribed as a viol ation of the Eighth Amendment

### 6

since the nineteenth century. Estelle v. Gamble , 429 U.S. 97, 102 (1976) (citing Wilkerson v. Utah , 99 U.S. 130, 136 (1879)). Congress has also prohibited torture that occurs abroad, making such conduct a federal crime punishable by fines and up to 20 years of imprisonment, and even life imprisonment or death should the torture result in a fatality. 18 U.S.C. § 2340A. Congress further created a cause of action against any individual who commits torture “under actual or apparent authority, or color of law, of any foreign na tion,” regardless of the victim’s nationality or the geographic location of the alleged acts. Torture Victim Protection Act (“TVPA”), Pub. L. No. 102-256, § 2(a), 106 Stat. 73, 73 (1992) (codified in 28 U.S.C. § 1350 (note)).
Within the context of a military conflict, Congress has declared, in both the Detainee Treatment Act of 2005 (“DTA”) and the Military Commissions Act of 2006 (“2006 MCA”), that “[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishme nt,” DTA, Pub. L. No. 109-148, div. A, title X, § 1003(a), 119 Stat. 2680, 2739 (codified at 42 U.S.C. § 2000dd(a)); 2006 MCA, Pub. L. No. 109-366, § 6(c)(1), 120 Stat. 2600, 2635 (c odified at 42 U.S.C. § 2000dd0(1)), and has further prohibited any “treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” DTA, Pub. L. No. 109-148, div. A, title X, § 1002(a), 119 Stat. at 2739 (codified at 10 U.S.C. § 801 (note)). See also 18 U.S.C. § 2441 (making war crimes committed by or against a member of the U.S. Armed Forces or a U.S. national punishable by fine, imprisonment, and/or death, regardless of where the crime occurred).

The Executive Branch has been similarly resolute in its prohibition of torture. The Un ited States signed the Convention

### 7

Against Torture and Other Cr uel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”) in 1988. In 2000, the U.S. Department of State, with input from the Department of Justice and other federal departments and agencies, submitted its initial compliance report to the United Nations Committee Against Torture, which stated:
Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the [United Nations] Convention [Against Torture] constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to co mmit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.
Initial Report of the United States of America to the United Nations Committee Against Torture ¶ 6, U.N. D OC



### . CAT/C/28/Add.5 (Feb. 9, 2000).
Specifically with regard to military detainees, President George W. Bush, in a statement issued in 2004, affirmed that
America stands against and will not tolerate torture. . . . American personnel are required to comply with all U.S.

### 8

laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . . Torture is wrong no matter where it occurs, and the United States will c ontinue to lead the fight to eliminate it everywhere.
Statement on United Nations International Day in Support of Victims of Torture, 40 W EEKLY 

### C OMP



### . P RES



### . D OC 

### . 1167, 1167- 68 (June 26, 2004). In 2009, President Barack Obama, through an executive order, instructed that “[detainees] shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment).” Exec. Order No. 13,491, 3 C.F.R. 199, 200 (2009). See also id. at 200-01 (“Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3.”).

B. Official Torture Violates the Law of Nations

The United States’ condemnation of official torture is simply a reflection of a firmly established international norm: Torture perpetrated under color of official authority unequivocally violates the law of nations. Every circuit that has addressed the issue has concluded that official torture violates customary international law. See, e.g., Kiobel v. Royal Dutch Petroleum Co. , 621 F.3d 111, 120 (2d Cir. 2010); id. at 155 (Leval, J., concurring in the judgment); Aldana v. Del Monte Fresh Produce, N.A., Inc. , 416 F.3d 1242, 1250-53 (11th Cir. 2005) (per curiam); Kadic v. Karadži ć , 70 F.3d 232, 243-44 (2d

### 9

Cir. 1995); Hilao v. Estate of Marcos , 25 F.3d 1467, 1475 (9th Cir. 1994); Tel-Oren , 726 F.2d at 788 (Edwards, J., concurring); id. at 819-20 (Bork, J., concurring) . Indeed, the Supreme Court in Sosa favorably cited the Second Circuit’s statement in Filartiga that “the torturer has become . . . an enemy of all mankind.” 542 U.S. at 732 (quoting Filartiga , 630 F.2d at 890); see also id. at 762 (Breyer, J., concurring) (“Today international law will sometimes similarly reflect not only substantive agreement as to certain universa lly condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior. That subset includes torture, genocide, crimes against humanity, and war crimes.” (citation omitted)).
International agreements signed by the United States support the conclusion that torture is a violation of customary international law. Article 2 of the Convention Against Torture provides that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent such acts of torture in any territory under its jurisdiction.” Art. II, para. 1, signed Apr. 18, 1988, S. T REATY 

### D OC



### . N O



### . 100-20, 1465 U.N.T.S. 85; see also S. E XEC



### . R EP



### . N O



### . 101-30, at 13 (1990) (noting that definition of torture in the Convention Against Torture “correspond[s] to the common understanding of torture as an extreme practice which is universally condemned”). In addition, the Geneva Convention of 1949, art. 3 (“Common Article 3”), prohibits torture “at any time and in any place” in an “armed conflict not of an international character.” See Hamdan v. Rumsfeld , 548 U.S. 557, 630 (2006) (explaining that the phrase “conflict not of an intern ational character” was used in contradistinction to Geneva Convention Common Article 2’s application to conflicts between nations, such that Common Article 3 applies to the United St ates’ conflict with al Qaeda). Ever since the Vietnam War – th e first war in which the United States had to consider the Geneva Convention’s application to prisoners in an insurgency environment – United States military

### 10

policy has been to apply Common Article 3 to all detainees upon capture. J AMES 

### F. G EBHARDT 

### , T HE 

### R OAD TO 

### A BU 

### G HRAIB 

### : US A RMY 

### D ETAINEE 

### D OCTRINE AND 

### E XPERIENCE 

### 120 (2005); see also William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features , 28 Y ALE 

### J. I NT 

### ’ L 

### L. 319, 321 (2003) (“Terrorists forfeit any claim to POW status under the laws of armed conflict, but they do not forfeit their right to humane treatment – a right that belongs to all humankind, in war and in peace.”).
In sum, there is universal agreement “in the modern usage and practice of nations,” Filartiga , 630 F.2d at 883, that official torture violates the law of nations. Any court addressing torture does not write on a clean slate.

II. A NALYSIS 

### A. Appellants Have a Cause of Action Under Section 1350 To Seek Redress for Official Torture
The Alien Tort Statute, 28 U. S.C. § 1350, reads as follows: “The district courts shall have original jurisdiction of any civil action by an alien for a tort onl y, committed in violation of the law of nations or a treaty of the United States.” The statute was passed by Congress as part of the Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77, but it was not much cited before the Second Circuit’s 1980 decision in Filartiga. See 630 F.2d 876 (holding that a cause of action for official torture is cognizable under section 1350). Filartiga led to the well-chronicled debate in Tel-Oren v. Libyan Arab Republic , 726 F.2d 774 (D.C. Cir. 1984), between Judge Bork and me about the purpose and scope of section 1350.

In Tel-Oren , I argued that section 1350 provided both federal jurisdiction and “a right to sue for alleged violations of the law of nations,” i.e. , customary international law. Id. at 780. I went on to emphasize

### 11

the extremely narrow scope of section 1350 jurisdiction under the Filartiga formulation. Judge Kaufman characterized the torturer in Filartiga as follows: “Indeed, for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis , an enemy of all mankind.” Filartiga , 630 F.2d at 890. The reference to piracy and slave-trading is not fortuitous. Historically thes e offenses held a special place in the law of nations: their perpetrators, dubbed enemies of all mankind, were susceptible to prosecution by any nation capturing them.

Id. at 781.
Judge Bork viewed section 1350 differently. He argued that “it is essential that there be an explicit grant of a cause of action before a private plaintiff be allowed to enforce principles of international law in a federal tribunal.” Id . at 801 (Bork, J., concurring); see also id. (criticizing the Filartiga court’s assumed cause of action under section 1350 as “fundamentally wrong and certain to produce pern icious results”). Judge Bork also tentatively indicated that onl y offenses akin to the principal offenses against the law of nations cited by Blackstone – violation of safe conducts, infringement of the rights of ambassadors, and piracy – would be actionable under the statute. Id. at 813-16.
Both Judge Bork and I agreed that the function and scope of section 1350 needed clarificati on from the Supreme Court. Id. at 775 (Edwards, J., concurring) (“This case deals with an area of the law that cries out for clarification by the Supreme Court.”); id. at 823 (Bork, J., concu rring) (“Since section 1350 appears to be generating an in creasing amount of litigation, it is to be hoped that clarification will not be long delayed.”). The Supreme Court obliged in Sosa

.

### 12

The issue before the Supreme Court in Sosa was whether respondent Alvarez, a Mexican citizen, could bring a claim against petitioner Sosa, a Mexican citizen hired by the Drug Enforcement Administration, for an alleged violation of the law of nations arising from his arbitrary detention. The Court first noted that “[section 1350] was intended as jurisdictional,” Sosa

, 542 U.S. at 714, and that it “creat [ed] no new causes of action,” id. at 724. However, the Court did not stop there. Rather, it held that
[t]he jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time. . . . We assume, too, th at no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala has categorically precluded fede ral courts from recognizing a claim under the law of nations as an element of common law; Congress has not in a ny relevant way amended § 1350 or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.

Id. at 724-25 (citation omitted). Th e Court thus plainly rejected Judge Bork’s suggestion that only violations of the law of nations extant as of 1789 could be brought pursuant to the ATS. See id. at 729 (rejecting Justice Scalia’s argument that federal courts should be precluded from “recognizing any further international norms as judicially enforceable today”).

### 13

Ultimately, the Court in Sosa rejected the respondent’s complaint on the ground that arbitr ary detention did not violate a “norm of customary internati onal law so well defined as to support the creation of a federal remedy.” Id. at 738. However, the Court surely did not foreclos e a cause of action under section 1350 based on allegations of official torture. Quite the contrary. Sosa “opened the door” to causes of action – such as official torture – that are “firmly grounded on an international consensus.” Saleh , 580 F.3d at 14.
B. Torture Committed by U.S. Officials Is Actionable Under the ATS
In this case, appellants allege that they were detained in U.S. military custody in Afghani stan and Iraq and subjected to “torture and other cruel, inhuman or degrading treatment or punishment” as a result of “the orders and derelictions of Defendant [Donald] Rumsfeld and high-level commanders.” Consolidated Am. Compl. for Declaratory Relief and Damages ¶¶ 1, 8 (Jan. 5, 2006), reprinted in Appendix 25, 27. The definition of torture is a matter of some controversy, see, e.g. , Judith Resnik, Detention, The War on Terror, and the Federal Courts , 110 C OLUM



### . L. R EV 

### . 579, 608-16 (2010), to be decided by the District Court in the first instance. Assuming, however, that the offenses articulated in appellants’ complaint constituted torture – which the Government doe s not dispute in its brief – I believe that appellants’ claims are actionable under section 1350.
Having established that the ATS grants a cause of action for clear and definite violations of the law of nations, the next question is whether an alien may sue a state actor under section 1350 to seek redress for torture. I can find nothing in the text or history of section 1350 to warrant excluding state actors from its
coverage.

### 14

The plain text of section 1350 – “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” – does not ex clude lawsuits against state actors. There continues to be much debate about the origin and original purpose of section 1350. See, e.g., Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute , 106 C OLUM



### . L. R EV 

### . 830 (2006); William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 H ASTINGS 

### I NT 

### ’ L 

### & C OMP



### . L. R EV 

### . 221 (1996); Willia m R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations , 18 C ONN



### . L. R EV



### . 467 (1986). However, I can find no compelling evidence in these or any other articles, the words of the statute itself, legislative materials, or the applicable case law to suggest that, in enacting section 1350, Congress made a “legislative judgment,” Sosa , 542 U.S. at 727, to preclude suits against U.S. officials brought under section 1350. The same holds true for Congress’ more recent enactment s of the TVPA, the DTA, and the 2006 MCA. In fact, as noted in Part I, supra , both the Legislative and Executive Branches have long condemned torture perpetrated under color of official authority. Not only has torture been condemned, “[t]orture has long been illegal” in our nation. 151 C ONG



### . R EC 

### . 30,756 (2005) (statement of Sen. Graham).
Although the Supreme Court has held that “special factors” counsel against a remedy for a constitutional violation under Bivens whenever the injury arises out of activity “incident to [military] service,” United States v. Stanley , 483 U.S. 669, 681 (1987) (internal quotation marks omitted); see also Chappell v. Wallace , 462 U.S. 296 (1983) (denying Bivens action to military personnel suing superior officers fo r injuries sustained in course of military service), this reasoning does not translate to actions brought pursuant to section 1350. This is so because, when section 1350 was enacted, Congress expressly gave the federal

### 15

courts jurisdiction over “[torts] committed in violation of the law of nations.” 28 U.S.C. § 1350. See Sosa , 542 U.S. at 724 (noting that section 1350 “is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time”). By contrast, constitutional claims under Bivens are not brought pursuant to any statute; the Supreme Court in Bivens “fashion[ed] a new, judicially crafted cause of action,” Correctional Servs. Corp. v. Malesko , 534 U.S. 61, 68 (2001), without relying on a congressional imprimatur akin to section 1350.
This court’s recent holding in Saleh that a private government contractor could not be liable for torture under section 1350 also does not control the disposition of this case. Unlike the appellants in the current case, who seek relief against state actors both in their individual and official capacities, the plaintiffs in Saleh were “unwilling to assert that the contractors [were] state actors.” 580 F.3d at 15. Saleh ’s holding – that, “[a]lthough torture committed by a state is recognized as a violation of a settled international norm, that cannot be said of private actors,” id . – therefore has no bearing on the availability of a cause of action under sec tion 1350 based on allegations of deliberate torture perpetrated under color of official authority.

The Saleh decision also points out that, although “Congress has frequently legislated on [the subjects of torture and war crimes] in such statutes as the TVPA, the Military Commissions Act, 10 U.S.C. § 948a et seq ., the federal torture statute, 18 U.S.C. 2340-2340A, the War Crimes Act, 18 U.S.C. § 2441, and the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq .,” it has never created a cause of action for victims of torture committed by private contractors. 580 F.3d at 16. But again, these facts are of little moment here because this case involves state actors, not private contractor s, and all of the statutes cited in Saleh were passed long after the Second Circuit’s landmark

### 16

decision in Filartiga recognized a cause of action for official

torture under section 1350. Furthermore, neither the text of the aforementioned statutes nor the coinciding legislative histories indicate any intent by Congress to limit or preempt Filartiga ’s interpretation of section 1350. In fact, there are congressional statements to the contrary. See S. R EP



### . N O



### . 102-249, at 4 (1991) (noting that “[s]ection 1350 has ot her important uses and should not be replaced” by TVPA); H.R. R EP



### . N O



### . 102-367, at 3 (1991), reprinted in 1992 U.S.C.C.A.N. 86 (same); 151 C ONG



### . R EC



### . 30,757 (2005) (statement of Sen. McCain) (noting that torturerelated provisions of the Detainee Treatment Act, which were re-passed as part of the 2006 MCA, “do not eliminate or diminish any private right of action otherwise available”).
Finally, although this court in Sanchez-Espinoza v. Reagan

, 770 F.2d 202, 206-07 (D.C. Cir. 1985), appeared to hold that no suits can be brought under section 1350 against U.S. officials in their personal capacities, Congress superseded this holding when it passed the Westfall Act. Sanchez-Espinoza is inapposite because the court dismissed the pl aintiffs’ claims in that case on the ground of common law immunity. We know, however, that Congress may override a judicial decision resting on a common law principle. See City of Milwaukee v. Illinois , 451 U.S. 304, 315 (1981) (“[T]he question [is] whether the legislative scheme spoke directly to a question . . . not whether Congress had affirmatively proscribed the use of federal common law.” (quotation omitted)); see also id. at 317 (“[W]e start with the assumption that it is for Congress, not federal courts, to articulate the appropriate standard s to be applied as a matter of federal law.” (footnote and internal quotation marks omitted)). Congress did just that when it passed the Westfall Act.
The Westfall Act “limits the relief available to persons injured by Government employees acting within the scope of their employment.” United States v. Smith , 499 U.S. 160, 161 (1991). However, what is significant here is that the Westfall

### 17

Act excepts from its grant of i mmunity all civil actions “brought for a violation of the Constitution of the United States” or “brought for a violation of a st atute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).
In my view, Congress’ decision to overrule Westfall v. Erwin , 484 U.S. 292 (1988), and to c odify the official immunity doctrine, including the section 2679(b)(2)(A) and (b)(2)(B) exceptions – which are explicit waivers of immunity – clearly preempted any preexisting common law applications of immunity with respect to the same matters. See Westfall , 484 U.S. at 300 (“Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context.”). There is no qualifier to section 2679(b)(2)(B) for situations in which “the basis for jurisdiction requires action authorized by the sovereign as opposed to private wrongdoing,” Sanchez-Espinoza , 770 F.2d at 207, nor is there any indication in the legislative history that Congress intended for such an exception to apply, H.R. R EP



### . 100-700 (1988), reprinted in 1988 U.S.C.C.A.N. 5945. The availability of immunity from section 1350 actions therefore depends on the application of the Westfall Act.
C. Does the Westfall Act Bar Claims Asserting Official Torture?
Federal courts, with “great caution,” are authorized by statute to recognize a cause of action under section 1350 for “definite” and “accept[ed]” violations of the law of nations. Sosa , 542 U.S. at 732. The United States has consistently and repeatedly condemned the use of official torture. And it is undisputed that “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” Filartiga, 630 F.2d at 878. However, in order

### 18

for appellants’ suits for official torture to proceed, they must fall within the Westfall Act’s exception for actions “brought for a violation of a statute of the United States under which such action against an individual is ot herwise authorized.” 28 U.S.C. § 2679(b)(2)(B) (emphasis added)

. The answer to the question whether the Westfall Act bars appellants’ claims turns on how section 1350 is viewed. There are at least two possible constructions of the ATS:
(1) the ATS is a statute that merely serves as a jurisdictional vehicle for violations of the law of nations; or
(2) the ATS itself incorporates the law of nations and furnishes jurisdiction over causes of action based on violations of definite and accepted principles under the law of nations.
If the latter construction is correct, it follows that section 1350 is capable of being violated. Th is is not an easy issue, and I would be naive to suggest otherwise. But because I conclude that the ATS incorporates the la w of nations, I believe that it is a “statute” that fits the Westfall Act exception.
1. The ATS “Incorporates” the Law of Nations, and It Would Be Ironic To Conclude Otherwise

The Court in Sosa made clear that section 1350 differs from other jurisdictional statutes, su ch as 28 U.S.C. § 1331, because it allows courts to entertain claims derived from the law of nations. See Stephen Satterfield, Note, Still Crying Out for Clarification: The Scope of Liability Under the Alien Tort Statute After Sosa, 77 G EO



### . W ASH



### . L. R EV



### . 216, 221-22 (2008) (deeming section 1350 an “‘interactive’ jurisdictional statute” because it “laid the jurisdictional foundation that allowed the newly formed district courts to hear causes of action arising under the law of nations”). As the Court says in Sosa , “the ATS

### 19

was meant to underwrite litigation of a narrow set of common law actions derived from the la w of nations.” 542 U.S. at 721. Therefore, pursuant to the ATS, federal courts have an obligation to recognize causes of action based on clear and definite violations of the law of nations. And, as the Court noted, the law of nations may be enforced under section 1350

“ without further statutory authority .” Id . at 729 (emphasis added).
In assessing the ATS, Sosa read the Court’s precedents to hold that
• “United States courts apply international law as a part of our own in appropriate circumstances”;
• “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”; and
• “The Court is bound by the law of nations which is a part of the law of the land.”

Sosa , 542 U.S. at 729-30 (brackets and citations omitted). As Judge William A. Fletcher has not ed, “[t]he Court’s decision [in Sosa ] . . . necessarily implies that the federal common law ofcustomary international law is federal law in the supremacyclause sense.” William A. Fletcher, International Human Rights in American Courts , 93 V A



### . L. R EV 

### . 653, 665 (2007). To me, this indicates that section 1350 its elf effectively incorporates the law of nations.
My line of analysis can be disputed. What cannot be doubted, however, is that it would be ironic to conclude that the Westfall Act bars claims resting on allegations of official torture. Under the majority’s approach, despite the fact that torture has long been illegal under United States law, see supra ,

### 20

a United States official who tortures a foreign national in a foreign country is not subject to suit in an action brought under section 1350, whereas a foreign official who tortures a foreign national in a foreign country may be sued under section 1350. E.g.

, Filartiga , 630 F.2d 876 (allowing action to proceed under section 1350 against Paraguayan o fficial for torture committed in Paraguay).
This is a bizarre result, because, in enacting the Westfall Act, Congress apparently meant only to immunize common-law torts against federal officials. See H.R. R EP



### . N O



### . 100-700, at 2 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5945 (noting that purpose of bill was to “provide immunity for Federal employees from personal liability for common law torts committed within the scope of their employment” (emphasis added)); id. at 6, reprinted in 1988 U.S.C.C.A.N. at 5950 (“Common law torts are the routine acts or omissions whic h occur daily in the course of business and which have been re dressed in an evolving manner by courts for, at least, the last 800 years.”); see generally Karen Lin, Note, An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act , 108 C OLUM



### . L. R EV



### . 1718, 1740-45 (2008) (arguing that Congress only intended the Westfall Act to apply to state-law torts). Indeed, the Supreme Court’s decision in Westfall v. Erwin , 484 U.S. 292 (1988), which Congress specifically overruled in passing the Westfall Act, addressed immunity in the context of a common-law negligence suit against federal employees. There is no evidence to indicate that Congress meant to address or foreclose actions under section 1350 brought against federal officials for torture; clear viola tions of the law of nations, such as torture, are not akin to the types of “routine acts or omissions” that Congress appears to have had in mind. Therefore, it is ironic, to say the least, that “[t]he Westfall Act . . . has proved to be a prac tically ‘impenetrable shield’ for [ATS] claimants against individual U.S. officials.” Lin, 108 C OLUM



### . L. R EV



### . at 1736-37.

### 21

2. Deconstructing the Westfall Act
The Westfall Act provides as follows:
The remedy against the United States provided by [the Federal Tort Claims Act] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting w ithin the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil ac tion or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.
28 U.S.C. § 2679(b)(1) (emphases added). In sum, the Westfall Act prohibits civil suits against U.S. employees in their individual capacities arising out of the scope of their employment.
As noted above, however, the Westfall Act excepts from its grant of immunity all civil actions “brought for a violation of the Constitution of the United States” or “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).
Appellants argue that their section 1350 claims fall within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). In response, the Government relies on the Supreme Court’s decision in United States v. Smith , 499 U.S. 160 (1991), to support the proposition that “this exception to the Westfall

### 22

Act . . . [applies] only to federal statutes that provide both a cause of action and the substantive law which the employee is alleged to have violated.” Appellees’ Br. at 47 (emphasis in original). The Government also refers to the Ninth Circuit’s decision in Alvarez-Machain v. United States , 331 F.3d 604 (9th Cir. 2003) (en banc), rev’d on other grounds sub nom. Sosa v. Alvarez-Machain , 542 U.S. 692 (2004).

The Ninth Circuit concluded that “a claim under the [ATS] is based on a violation of international law, not of the [ATS] itself.” 331 F.3d at 631. Several district courts have followed this line of analysis. See, e.g., Al-Zahrani v. Rumsfeld , 684 F. Supp. 2d 103, 114-16 (D.D.C. 2010); Rasul v. Rumsfeld , 414 F. Supp. 2d 26, 37-38 (D.D.C. 2006) (issue not appealed); Bancoult v. McNamara , 370 F. Supp. 2d 1, 9-10 (D.D.C. 2004). In my view, these decisions are flawed, because they fail to acknowledge a critical distinction between the Gonzalez Act – the statute at issue in Smith – and section 1350.
The Gonzalez Act, like the We stfall Act, is a grant of federal employee immunity. Specifically, it provides that “in suits against military medical personnel for torts committed within the scope of their employm ent, the Government is to be substituted as the defendant.” Smith , 499 U.S. at 162 (citing 10 U.S.C. §§ 1089(a), (b)). In Smith , the plaintiffs sued a U.S. military physician for negligence in federal court, and the United States sought to substitute itself for the physician under the Westfall Act. The plaintiffs objected, arguing that their claim would have been permitted under the Gonzalez Act due to an implicit exception in that statute, and that, as a result, the claim should be exempted from Westfall Act immunity due to § 2679(b)(2)(B)’s exception for claims brought pursuant to a federal statute. The Supreme Court disagreed, holding that: “[n]othing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or

### 23

foreign law does not ‘violate’ the Gonzalez Act.” Smith , 499 U.S. at 174.

The Court’s decision in Smith seems plainly inapposite here. In contrast to the Gon zalez Act, section 1350 is a statute enabling the federal courts to impose liability – not limit liability. Because section 1350 expressly incorporates the “law of nations,” it is a statute that can be violated.

3. The ATS Is Not a Jurisdictional Statute Akin to Section 1331 – It Is Therefor e a “Statute” Sufficient To Satisfy the Westfall Act Exception
The Supreme Court emphasized in Sosa that, in comparing the ATS with the grant of federal-question jurisdiction, 28 U.S.C. § 1331, “[s]ection 1350 was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations; and we know of no reason to think that federal-question jurisdiction was extended subject to any comparable congressional assumption.” 542 U.S. at 731 n.19. Thus, if Congress repealed section 1350, federal courts would have no authority today to recognize common law causes of action for violations of customary international law, such as torture. See Mohamed v. Rajoub , 634 F.3d 604, 609-10 (D.C. Cir. 2011) (holding that appellant had no cau se of action for violation of customary international law pursuant to 28 U.S.C. § 1331); see also Sosa , 542 U.S. at 712 (“[W]e think that at the time of enactment [of the ATS] the jurisdiction enabled federal courts to hear claims in a very lim ited category defined by the law of nations and recognized at common law.”). This makes section 1350 inherently different from other jurisdictional statutes, such as section 1331, and quite diffe rent from the Gonzalez Act. See generally Satterfield, 77 G EO



### . W ASH



### . L. R EV



### . at 221-22; William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System After Sosa v. Alvarez-Machain

, 12 T ULSA 

### J. C OMP



### . & I NT 

### ’ L 

### L. 87, 97-100 (2004) (analyzing Sosa ’s

### 24

discussion of congressional in tent in enacting section 1350 as compared to section 1331).
Section 1350 parallels section 301(a) of the Labor Management Relations Act of 1947. Section 301(a) provides that

Suits for violation of contr acts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States havi ng jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). In Textile Workers Union of America v. Lincoln Mills of Alabama , 353 U.S. 448 (1957), the Supreme Court held that section 301(a) “authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements,” 353 U.S. at 451 – despite the fact that the plain text of this provision only speaks to federal jurisdiction. See also Sosa , 542 U.S. at 726 (citing Lincoln Mills as an example of a “haven” of federal common law). Just as section 301(a) provides jurisdiction and allows federal courts to create federal common law to enforce collective bargaining agreements, section 1350 provides jurisdiction and allows federal courts to create a federal common law remedy for definite and accepted violations of customary international law. In other words, it is section 1350, not international law, that gives federal courts the authority to enforce “international norms that a federal court c[an] properly recognize as within the common law enforceable without further statutory authority .” Sosa , 542 U.S. at 729 (emphasis added). This makes section 1350 “statutory authority” sufficient to satisfy the Westfall Act exception.

### 25

It might be argued that Smith should be read to bar the Westfall Act exception from applying here, because section 1350 does not explicitly incorporate the law of nations. That was the view taken by the Ninth Circuit, even as that court acknowledged that the Gonzalez Act and section 1350 have very different purposes. See Alvarez-Machain , 266 F.3d at 1054. Although this argument is not without force, I disagree. Like section 301(a), as interpreted by the Court in Lincoln Mills , a federal statute may incorporate enforceable substantive rights even though the statute does not spell out the details of those rights. It is true that Sosa says that, since Erie Railroad Co. v. Tompkins , 304 U.S. 64 (1938), “the general practice has been to look for legislative guidance before exercising innovative authority over substantive law,” Sosa , 542 U.S. at 726; but Sosa opened the door to the recognition of causes of action alleging wrongs – such as official tort ure – that violate the law of nations.
In short, I believe that Smith has no application here, because, as noted above, Smith was focused on the Gonzalez Act, not section 1350. Unlike the Gonzalez Act, section 1350 is a statute authorizing the federal courts to impose liability – not limit liability. I therefore conclude that section 1350 fits within the exception to the Westfall Act fo r “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwis e authorized,” 28 U.S.C. § 2679(b)(2)(B). Accordingly, I dissent from the majority’s disposition of appellants’ claims under section 1350.

III. CONCLUSION
Twenty-seven years ago, in Tel-Oren , I said that “[t]his case deals with an area of the law that cries out for clarification by the Supreme Court.” 726 F.2d at 775. I say the same again here.

### 26

I thought that the Court’s decision in Sosa afforded the lower federal courts the amplification and clarification necessary to understand how to process claims properly brought under section 1350. Obviously, I was mistaken. Some of my colleagues on the federal bench believe that the Westfall Act takes away what the ATS gives insofar as it allows causes of action against state actors who perpetrate torture under the color of official authority. Ultimatel y, after careful consideration of this difficult question, I think the decisions that have endorsed this approach are misguided.
Even if ATS actions against state actors were barred by principles of common law immunity, as this court thought in Sanchez-Espinoza , I believe that Congress vitiated that immunity when it enacted the Westfall Act. In my view, Congress’ decision to overrule Westfall v. Erwin , 484 U.S. 292 (1988), and to codify the official immunity doctrine, including the 28 U.S.C. § 2679(b)(2)(A) a nd (b)(2)(B) exceptions – which are explicit waivers of immunity – clearly preempted any preexisting common-law applications of immunity with respect to the same matters. And I believe that actions that are cognizable under section 1350 – such as allegations of official torture – fall within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized.” Id

. § 2679(b)(2)(B). On this last poi nt, I agree with Judge Fletcher that Sosa “necessarily implies that the federal common law ofcustomary international law is federal law in the supremacyclause sense.” W illiam A. Fletcher, International Human Rights in American Courts , 93 V A



### . L. R EV 

### . 653, 665 (2007). For me this means that it is section 1350, not international law, that gives federal courts the authority to enforce international norms that a federal court can properly recognize as within the common law enforceable “without further statutory authority.” Sosa , 542 U.S. at 729 (emphasis added). As I see it, section 1350 is “statutory authority” sufficient to satisfy the Westfall

### 27

Act exception. Some may disagree with my analysis, but at this point I cannot see why.
As I noted above, I think it is fair to say that the developing case law is ironic. As one commentator has noted:
In the past thirty years, th e [ATS] has become an important instrument in advancing human rights claims before U.S. courts. In light of this exceptional statute, the Westfall Act’s effect of immunizing U. S. officials is doubly ironic: Not only has the country that led the way in allowing aliens to vindicate their rights agains t foreign officials maintained official immunity for its own officials even in the face of modern human rights accountability, but it has also done so unintentionally. As a result, U.S. courts apply a double standard of liability where by foreign officials may face liability for international law violations while U.S. officials have absolute immunity for those same violations.
Karen Lin, Note, An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act , 108 C OLUM



### . L. R EV 

### . 1718, 1719 (2008) (footnotes omitted).
I do not agree with the courts th at have helped to create this irony by granting immunity to Unite d States officials from ATS actions. It is hard to fathom why Congress would pass a law that makes all government officials – except our own – subject to liability for torture committe d overseas. There is nothing to indicate that Congress meant to achieve this result when the Westfall Act was passed. Maybe it is time for Congress to give the judiciary better directions on this matter.