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Only the Westlaw citation is currently available.

United States Court of Appeals,District of Columbia Circuk.

Arkan MOHAMMED Ati et al., AppellantsV,

Donald H. RUMSFELD, Individually, et al., Ap-pellees.

Nos. 07-5!78, 07-5185, 07-5186, 07-5187.Argued Jan. 13,2011.

Decided June 2!, 2011.

Background: Afghan and Iraqi citizens capturedand subsequently held in Afghanistan and Iraq, re-spectively, by United States military filed actionagainst former Secretary of United States Depart-merit of Defense, and three high-ranking Army of-ricers, under the Fifth and Eighth Amendments toUnited States Constitution, Alien Tort Statute(ATS), and Third and Fourth Geneva Conventions,seeking damages and declaratory relief as result oftheir treatment while in United States custody. TheUnited States District Court for the District ofColumbia, Thomas F. Hogan, J., 479 F.Supp.2d 85,dismissed action. Plaintiffs appealed.

Holdings: The Court of Appeals, Karen LecraftHenderson, Circuit Judge, held that:(1) defendants were entitled to qualified immunit<(2) danger of obstructing United States nationalcurib’ policy counseled against Bi~/e~sclaim to proceed;(3) Westfail Act, which allowed for substitution ofUnited States as defendant, applied;(4) Alien Tort Statute (ATS), pursuant to which dis-trict courts ;;have cognizance . of all causeswhere an alien sues for a tort only in violation ofthe taw of nations or a treab of the United States"was jurisdictional statute; and(5) plaintiffs ~,ere not entitled to declaratory judg~merit that alleged torture b) military personnel wasunIaw%l and violated Fifth and Eighth Amend-

ments, military pales and guidelines, and law of na-tions.

Edwards, Senior Circuit Judge, riled dissentingopinion.

West Headnotes

[1] Constitutional Law 92 ~;=:~4545(1)

92 Constitutional Law92XXVII Due Process

92XXVII(H) Criminal Law92XXVII(H)3 Law Enforcement

92k4543 Custody and Confinement ofSuspects; Pretrial Detention

92k4545 Conditions92k4545(1) k. In General. Most

Cited CasesAn individual not yet convicted of a crime

must challenge his treatment or the conditions ofhis conrinement under the Due Process Clause ofthe Fifth or Fourteenth Amendments rather than theEighth Amendment. U.S.C.A. ConstAmends. 5, 14.

[2! U~ited States 393

393 United States393I Government in General

393k50 Liabilities of Ofricers or Agents %rNegligence or Misconduct

393k50.i0 Particular Acts or Claimsk. Criminal Law Eno

%rcement and Prisoners’ Claims.Most Cited Cases

Former Secretary of DeparUment of Defenseand three high-ranking An~y ofricers, were entitledto qualified immunity fi~om Bh~’~s claims underf~ifth and Eighth Amendments that had been madeby Afghan and lraqf citizens captured and sub-sequently held in A~hanistan and Iract, respect-

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ively, by United States military alleging torture.U.S.C.A. Const.Amends. 5, 8.

~31 Civil Rights 78 ~;==q376(2)

78 Civil Rights78111 Federal Remedies in General

78k1372 Privilege or Immunity; Good Faithand Probable Cause

78k1376 Government Agencies and Of-ficers

78k1376(2) k. Good Faith and Reason-ableness; Knowledge and Clarity of Law; Motiveand Intent, in General. Most Cited Cases

Qualified immunity shields a government offi-cial from civil liability if his conduct does not viol-ate clearly established statutory or constitutionalrights of which a reasonable person would haveknown.

[4~ Constitutional Law 92

92 Constitutional Law92Vt Enforcement of Constitutional Provisions

92VI(C) Determination of ConstitutionalQuestions

92VI(C)2 Necessity of Determination92k975 k. In General. Most Cited Cases

When it is plain that a constitutional right isnot clearly established, but far from obvious wheth-er in fact there is such a right, deciding the exist-ence of the constitutional right vel non is not appro-priate since it is an essentially academic exercise,that runs counter to the older, wiser judicial counselnot to pass on questions of constitutionality unlesssuch adjudication is unavoidable, and results in thesubstantial expenditure of scarce judicial resourceson difficult questions that have no ef~%ct on the out-come of the case.

Civil Rights 78 ~~-~1376(1)

78 Civil Rights78III Federal Remedies in General

78ki372 Privilege or Immunib’; Good Faith

and Probable Cause78k1376 Government Agencies and Of-

ricers78k!376(1) k. In General. Most Cited

Cases

Constitutional Law 92 <~;=~975

92 Constitutional Law92VI Enforcement of Constitutional Provisions

92Vl(C) Determination of ConstitutionalQuestions

92Vt(C)2 Necessity of Determination92k975 k. in General. Most Cited Cases

When it is plain that a constitutional right isnot clearly established, but far from obvious wheth-er in fact there is such a right, deciding the exist-ence of the constitutional right vel non is not appro-priate since an affected party may be precludedfrom obtaining appellate review of a decision thatcould significantly affect its future actions; if acourt decides that the defendant violated thepiaintiFs constitutional right but is entitled to qual-ified immunity because the right was not clearly es-tablished at the time, the "prevailing" defendantpresumably would not be able to appeal the adverseconstitutional holding.

United States 393

393 United States393I Government in General

393k50 Liabilities of Officers or Agents forNegligence or Misconduct

393k50.10 Particular Acts or Claimsk, Crimina~ Law En-

forcement and Prisoners’ Claims.Most Cited Cases

Danger of obstructing United States nationalsecurity policy counseied against allowingclaim to proceed against former SecretaU of De-partment of Defense, and three high-ranking Arm?of’ricers, under FiRh and Eighth Amendments a-leging to>ture that had been made bF Afghan andaqi citizens captured and subsequently held

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Afghanistan and Iraq, respectively, by UnitedStates military, engaged in war, since ability ofarmed forces to act decisively and without hesita-tion in defense of liberty and national interestswould have been disrupted and hindered. U.S.C.A.Const.Amends. 5, 8.

United States 393

39.3 United States3931 Government in General

393k50 Liabilities of Officers or Agents forNegligence or Misconduct

393k50.5 Immunity or Privilege in Gener-al

393k50.5(1) k. in General. Most CitedCases

Westfall Act, which allowed for substitution ofUnited States as defendant under Tort Claims Act(TCA) for employee being sued for negligent or"wrongful" act or omission committed whi~e actingwithin scope of employment, applied to claim thatmilitary’ personne] and their civilian supervisors in-tentionally inflicted torture upon aliens detained inAfghanistan and Iraq, in connection with UnitedStates war efforts in those countries, and thus ex-haustion of administrative remedies was required.28 U.S.C.A. § 2679(b)(1); 28 C.F.R. § 14.t.

United States 393 ~127(2)

393 United States393~X Actions

393k127 Rights of Action Against UnitedStates or United States Of~Scers

k Prior AdministrativeClaim. Most Cited Cases

Under Federal Tort Ctaims Act (FTCA), thefailure to exhaust administrative remedies is juris-dictional. 28 U S,C.A, § 2671 et seq.; 28 C.F.R, §14, i.

{91 Federal Courts 170B 0!92ot0

170B Federal Courts170Biil Federa! Question Jurisdiction

170BIII(C) Cases Arising Under Laws of theUnited States

170Bk192.10 k. Aliens and Foreign Sov-ereigns, Laws Relating To. Most Cited Cases

Alien Tort Statute (ATS), pursuant to whichdistrict courts "have cognizance . . . of all causeswhere an alien sues for a tort only in violation ofthe law of nations or a treaW of the United States,"was jurisdictional statute, in sense that it only ad-dressed power of courts to entertain certain claimsand did not create statuto~ cause of action for ali-ens. 28 U.S.C.A. § !350.

International Law 221 ~1

221 Internationa! Law221kl k. Nature and Authorib, in General. Most

Cited CasesThe common law of the United States recog-

nizes the law of nations.

Declaratory Judgment ! 18A ~203

118A Declaratou Judgmenti 18AII Subjects of Declaratory., Relief

1 t SAIt(K) Public Officers and Agencies118Ak203 k. Federal Officers and Boards.

Most Cited CasesAfghan and iraqi citizens captured and sub-

sequently held in Afghanistan and Iraq, respect-ively, by United States military engaged in warwere not entitled to declaratory judgment that al-leged torture by militaU personnel was unlawfuland violated Fifth and Eighth Amendments, milit-au rules and guidelines, and law of nations, sincethose citizens did not allege cognizable cause of ac-tion. U.S.C.A. Const.Amends. 5, 8; 28 U.S.C.A. §2201.

[12} Declaratory Judgment 118A ~272

1 iSA Declaratou Judgment! 18AIII Proceedings

1i 8AIII(B)furisdic~io~ and Venue118Ak272 k, Jurisdictior~ Not Enlarged,

Most Cited Cases

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The Declaratory Judgment Act is not an inde-pendent source of federal jurisdiction; rather; theavailabilib’ of dectaratou relief presupposes the ex-istence of a judicially remediable right. 28§ 2201.

Appeals from the United States District Court forthe District of Columbia (No. 05cv01378).CecilliaD. Wang argued the cause for the appellants. LucasGuttentag, Jennifer Chang Newe!l and Kate De-sormeau, Steven R. Shapiro, Paul Hoffman, JamesP. Cullen, Bill Lann Lee, Arthur B. Spitzer, DavidRudovsky, and Erwin Chemerinsky were on the brief.

Stephen A. Saltzburg was on brief for amici curiaeNational Institute of Militau Justice et al. in sup-port of the appellants.

William J. Aceves was on brief for amici curiaeHuman Rights & Torture Treatment Organizationsin support of the appellants.

Robert M. Loeb, Attorney, United States Depart-ment of Justice, argued the cause for the appellees.Barbara L. Hepaqg, Michael L. Martinez, Mark E.Nagle, Stephen L. Braga and Ryan E. Bull, Attor-neys, were on brief.

Before SENTELLE, Chief Judge, HENDERSON,Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion %r the Court filed by Circuit JudgeHENDERSON.

Dissenting opinion filed by Senior Circuit JudgeEDWARDS,

KAREN LECRAFF HENDERSON, Circuit Judge:"I Four Afghan and five iraqi citizens captured

and subsequently heid in Afghanistan and Iraq, re-

spectively, by the United States military: sued Don-ald Rumsfeld, former Secretary of the United StatesDepartment of Defense, and three high-rankingArmy officers ~~a (collectively, defendants) underthe Fifth and Eighth Amendments to the UnitedStates Constitution, the Alien Tort Statute (ATS),28 U.S .C. § 1350, and the Third and FourthGeneva Conventions, 6 U.S.T. 3316 and 6 U.S.T,3516, seeking damages and declaratory, relief as theresult of their treatment while in U.S. custody. Thedistrict court granted the defendants’ motion to dis-miss all six claims and the plaintiffs appeal the dis-missal of their constitutional and ATS claims only.For the reasons set forth below, we affirm the dis-trict court’s judgment.

The amended complaint alleges the followingfacts. Arkan Mohammed All is an Iraqi citizen whowas held at Abu Ghraib and other militau facilitiesin Iraq for almost one year, from approximately Ju-ly 2003 to June 2004. Am. Compk { 17. He allegeshe was beaten to the point of unconsciousness;stabbed and mutilated; stripped naked, hooded andconfined in a wooden phone booth-sized box; sub-jected to prolonged sleep deprivation enforced bybeatings; deprived of adequate food and water andsubjected to mock execution and death "threats. IdThahe Mohammed Sabar is an traqi citizen whowas held at Abu Ghraib and other military, facilitiesin traq for about six months from approximatelyly 2003 to January’ 2004 td ~ 18. He alleges hewas severely beaten, sexuaIly assaulted and humili-ated, deprived of adequate food and water, inten-tionally exposed to dangerously high temperaturesfor prolonged periods and subjected to mock execu-tions and death threats. ]d Sherzad Kamal Khalid isan Iraqi citizen who was he]d at Abu Ghraib andother militaw facilities in Iraq for about twomonths from 2003September 2003. Id. ~ 19. He aileges he was fre~quently and severely beaten, sexual y assaulted andhreatened with anal rape, deprived of adequatefood and water, intentionaly exposed to danger-ousty high temperatures and subjected to ;~mock

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ecutions, death threats ... and prolonged sleepdeprivation enforced by beatings." id All H. is anIraqi citizen who was held at Abu Ghraib and othermilitary facilities in Iraq for about four weeks fromAugust to September 2003. Id ~ 20. He alleges theU.S. military intentionally withheld and delayed ne-cessary medical treatment, intentionally inflicted~pain after surgery’ by dragging him from one loca-tion to another and forcefully ripping away the sur-gical dressing," intentionally exposed him to infec-tion by leaving his surgical wound half-bandagedand deprived him of adequate food and water.Najeeb Abbas Ahmed is an Iraqi citizen who washeld at Abu Ghraib and other military facilities inIraq for two separate periods, the first from approx-imately May 2003 to July 2005 and the secondfrom approximately July 2005 through December2005. !d ~ 21. He alleges U.S. soldiers held a gunto his head, threatened him with death and with lifeimprisonment at Guantanamo Bay, sexually assaM-ted him, stepped and sat on hisbody while he wasin extreme restraints, humiliated him by chantingracial epithets while videotaping and photographinghim, held him in an outdoor cage at temperaturesexceeding approximately 120 degrees Fahrenheit,intentionally deprived him of sleep for prolongedperiods, confiscated medication for his high bloodpressure and heart disease and intentionally de-prived him of medical care after he ~suffered morethan one heart attack and a possible stroke in deten-tion." Id Mehboob Abroad is a citizen of Afgh-anistan who was held by the U.S. military at the de-tention facitity located at Bagram Air Force Base(Bagram) and at other military facilities in Afgh-anistan for approximately five months from June toNovember 2005. Ic~ ~ 22. He alleges U.S. soldiersplaced him in restraints and positions calculated tocause pain, intimidated him with a vicious dog,questioned him while he was naked, threatened hisfamily and subjected him to sensory deprivation.Said Nabi Siddiqi is a citizen of Afghanistan whowas also held at military facilities in Afghanistan,including Bagram and the Kandahar detention faciI-ib, from July. to August 2003. Jd. ~ 23. He allegeshe was beaten, placed in restraints and positions

calculated to cause pain, subjected to "verbal abuseof a sexual nature," humiliated by being photo-graphed naked, denied water, intentionally deprivedof necessary medication, intentionally exposed todangerous temperatures for prolonged periods anddeprived of sleep. Id Mohammed Karim Shirullahis a citizen of Afghanistan who was held at Bagramand other military, facilities in Afghanistan for ap-proximately six months, from December 2005 toJune 2004. ]d ~ 24. He alleges he was beaten,placed in restraints and positions calculated tocause pain, interrogated and photographed whilenaked, subjected to sensory’ deprivation and placedin solitary, confinement for an extended period,denied medical care for injuries caused by abuse,intentionally exposed to extreme temperatures forprolonged periods, doused with cold water and de-prived of sleep, td. Haji Abdul Rahman is a citizenof Afghanistan who was held at Bagram and othermilitary facilities in Afghanistan for approximatelyfive months, from December 2003 to May 2004. id.~ 25. He alleges he was questioned and photo-graphed while naked, subjected to complete sensory’deprivation for twenb:-four hours, placed in solitary,confinement and deprived of sleep, id

*2 The plaintiffs originally filed separate ac-tions in four different jurisdictions--the District ofConnecticut, the Northern District of Illinois, theDistrict of South Carolina and the Southern Districtof Texas. By an order dated June I7, 2005, the Ju-dicial Panel on Multidistrict Litigation transferredthe cases to the district court of the District ofColumbia for coordinated and consolidated pretrialproceedings pursuant to 28 U.S.C. § 1407. Theplaintiffs filed an amended complaint on January 5,2006. They allege the defendants:

(t) formulated or implemented policies and prac-tices that caused the torture and other cruei~ inhu-man or degrading treatment of P aintiffs; and (2)had effective command and control of US. milit~ary personnel in Iraq ands’or Afghanistan andknew and had reason to know of" torture anduse by their subordinates and failed to promptl)

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and effectively prohibit, prevent and punishlaw1% conduct.

Id ~ 26. The plaintiffs asserted six causes ofaction in the district court; five asserted claims forviolations of (1) the Due Process Clause of theFifth Amendment, (2) the Fifth Amendment andEighth Amendment prohibitions against cr~ae! andunusual punishment, (3) the law of nations prohibi-tion against torture, (4) the law of nations prohibi-tion against cre!l, inhuman or degrading treatmentand (5) the Geneva Conventions. Am. Compl. ~235-59. The sixth cause of action sought a declarat-o©’ judgment that defendant Rumsfeld violated "thelaw of nations, binding treaties and the U.S. Consti-tution." ]d ~ 260-63. In March 2006, the defend-ants moved to dismiss the amended complaint pur-suant to Rules 12(b)(1) and 12(b)(6) of the FederalRules of Civil Procedure (FRCP) for lack of subjectmatter jurisdiction and failure to state claims uponwhich relief may be granted.Fy2

On March 27, 2007, the district court dismissedthe plaintiffs’ amended complaint pursuant to FRCP12(b)(!) and !2(b)(6) "and on the ground that thedefendants are entitled to qualified immuniEv."re /rag & Afghanistan Detainees Lifig. (DetaineesLifig.), 479 F.Supp.2d 85, !19 (D.~.C.2007). Re-garding the constitutional claims brought pursuantto Bive~s v. Si2" U~k~o~ Named Agents q,< Federa/Yz~reau q~Narcotics, 403 U.S. 388, 91 S.Ct. 1999,29 LEd.2d d19 (1971)/~ the district cou~the Fi~h and Eighth Amendments do not apply"nonresident aliens who were injured ex~ateMtori-ally while detained by the militaV in %reign coun-tries where the United Sta~es is engaged in wars."w4 Detainees LitN., 479 F.Supp.2d at 95. Thecourt relied on the UMted States Supremeholdings in ,/ohnso~ ~. Eise~trager, 339 U.S.70 S£t. 93d, 94 L.Ed. 1255 (1950), a~d

S.Ct. I05& 108 L.Ed.2d 222 (1990), and~ D~v/s- 533 ~.S. 678 121 S.Ct. 2491, !50L.Ed.2d 653 (200~), and o~ our

rev’d, 553 U.S. 723, 128 S.Ct. 2229, !71 L.gd.2d41 (2008). vys The court 15arther held that even ifthe plaintiffs could claim constitutional protections,special factors would counsel against inferring avens remedy. De~’ainees Litig., 479 F.Supp.2d at103-~07. It explained "that military affairs, foreignrelations, and national security are constitutionallycommitted to" the President and the Congress andconcluded "that authorizing monetao, damagesremedies against military officials engaged in anactive war would .,. obstruct the Armed Forces’ability to act decisively and without hesitation indefense of our libertT’ and national interests."at 107, 105. Finally, the district court held thatqualified immunity protected the defendants fromthe Bivens claims because, even if the plaintiffspossess constitutional rights, "those rights were notclearly established at the time the alleged injuriousconduct occurred." Id at

*3 As to the Geneva Conventions claims andthe alleged violations of the law of nations broughtpursuant to the ATS,w~ the district court held that"the defendants are entitled to absolute immunitypursuant to the Westfall Act," according to whichAct the Federal Tort Claims Act (FTCA), 28 U.S.C.§§ 1346, 2671 et seq., provides the exclusive rem-edy for a tort committed by a federal official or em-ployee within the scope of his479 RSupp.2d at 114. Ene court concluded theWestfall Act includes an intentional to~, in( at110-11, and, relying on the Restatement (Second)of Agency ~ 228 (1958),~s dete~ined the de-fendants acted within the scope of their employ-ment because "detaining a~d inte~ogating enemyaliens’~ was ~incidenta~ to their overall mHitaEv ob-ligations." /i at 114. The cou~ flasher ruled thatneither the ATS claims nor the Geneva Conven-tions ciaims fell within one of the statutory excep-tions to the Westtlal] Act. ~d at 111-13. Accord-ingly, the cou~ substituted the United States as thedefendant on the ATS a~d Geneva Conventionsciaims and then dismissed those claims because t~eplai~tiff:s ~iai~ed to exhaust ther adm ~istrat ve rem-edies as required by the FTCA. [d. at 1 t4-5.

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The district court rejected the plaintiffs’ allega-tion that Geneva Convention IV itself provides aprivate cause of action and dismissed their claimsfor violations of the Convention for failure to statea claim for relief. Id at 115-t7. Regarding theirclaim for declarato~, relief, the court held theplaintiffs lacked standing because the named de-fendants no longer hetd their official positions in Ir-aq or Afghanistan and therefore the plaintiffs couldnot show "that they face a real and imminent threatof being wronged again in the future" by those de-fendants. Id at 118. Additionally, the court held theplaintiffs, having sued the defendants in their indi-vidua! capacities only, could not seek declaratoureliefY~ ]d at 118-!9.

The plaintiffs timely flied a notice of appeal onMay 24, 2007, challenging the district court’s dis-missal of their constitutional and ATS claims andits dismissal of their claim for declarato~ relief.They do not appeal the dismissal of their GenevaConventions claims.

tn reviewing the district court’s grant of a mo-tion to dismiss, we accept as true the factual allega-tions of the plaintiffs’ complaint and review the dis-trict court’s legal conclusions de novo. Daniels v.~Z~io~ Par:. R.R. Co., 530 F.3d 936, 940(D.C.Cir.2008) (~’We review "the district court’s leg-al conclusions de ~o,~o _. [and] accept as true thefacts that [the plaintiff’s] allege[ ] in [their] com-plaint in reviewing the district court’s disposition ofthe defendants’ motion to dismiss." (alterations inoriginal) (internal quotation marks omitted)). Weaddress seriatim the constitutionalclaims, their ATS claims and their claim far declar-atoo relief.

Ao The Bivens C~aims*4 {i]{2] Each plaintiff asserts two ,givens

claims, namely, the defendants tortured him in viol-atio~ of his due process right under the FifthAmendment and the defendants conduct consti-tuted cruel and unusual punishment is violation ofthe Amendmentf~° Am

255-46. Our decisions in Rasul v. Myers (Rasu! I ),5!2 F.3d 644 (D.C.Cir.), vacated -- U.S. --,129 S.Ct. 763, 172 L.Ed.2d 753 (2008), and Rasu/v. Myers (Raszd II ), 563 F.3d 527 (D.C.Cir.) (percuriam), cert. denied U.S.--, t30 S.Ct.!01_3, 175 L.Ed.2d 618 (2009), govern our resolu-tion of these claims.

In Rasu! 1, four British citizens sued SecretaryRumsfeld and several high-ranking military offi-cials for damages arising from their alleged illegaldetention and torture at Guantanamo Bay, Cubabetween 2002 and 2004. Rasu! L 512 F.}d at649-50. Their complaint included claims under theFifth and Eighth Amendments, the ATS, theGeneva Conventions and the Religious FreedomRestoration Act, 42 U.S.C. §§ 2000bb et seq. Weaffirmed the district court’s dismissal of the consti-tutional claims, explaining that "Guantanamo de-tainees lack constitutional rights because they arealiens without property or presence in the UnitedStates?’ 512 F.Zd at 663 (citing Boumedie~e v.Bush, 476 F.Bd 98!, 984 (D.C.Cir.200?), rev’d 55.3U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008)).Furthermore, we concluded the defendants wereprotected by qualified immunity because, even as-suming arguendo the detainees possessed rights un-der the Fifth and Eighth Amendments, those rightswere not clearly established at the time of their de-tention and alleged torture, td. at 665~7. AfterRasuI I issued, the Supreme Court reversed ourBoumediene decision and held theClause extends to nonresident aliens detained atGuantanamo Bay. Youmediene ~, Bush, 553 U.S.?2_3, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). TheCourt then vacated our judgment in Rasu/ t and re-manded for further consideration in light of its in-tervening decision in Boumediene. Ras~! ,. M3ers,-- U.S. --, 129 S.Ct. 763, 172 L.Ed.2d 753

[3i On remand, we reafflr~ed our holding t~atthe de~endants were pro~:ected b) qualified im.-munity and explained it was not necessao totermine whether the Fifth and Eighth Amendments

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applied to the plaintiffs,vN~ Qualified immunityshields a government official from civil liability ifhis conduct "does not violate dearly establishedstatuto~/ or constitutional rights of which a reason-able person would have known." Har/ov~ v. Fitzger-aid 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d?96 (1982). Even if the Rasu/plaintiffs could assertrights under the Fifth and Eighth Amendments, weexplained, Boumediene did not alter the conclusionthat those rights were not clearly established at thetime of the defendants’ challenged conduct. Rasul1/, 563 F.Sd at 529-30. The plaintiffs argue, as didthe Rasu/plaintiffs, hhat the defendants should haveknown (that is, a reasonable person would haveknown) their alleged misconduct violated the Con-stitution because it "has long been settled that theConstitution forbids the torture of any detainee."~N~: Appellants’ Br. 23; see Rased I, 512 F.Sd at666. The proper inquiry, however, is not whetherthe Constitution prohibits torture but "whether therights the plaintiffs press u~qa’er the F{fih and Eig/~thAmendments were clearly established at the time ofthe alleged violations." Rasu/ I, 512 F.3d at 666(emphasis in original). As the Supreme Court madeclear in Boumediene, it had "never held that noncit-izens detained by our Government in territory overwhich another country’ maintains de jure sover-eignty have any rights under our Constitution." 553U.S. at 770; see als’o Raszd//, 563 F.3d at 530the time of [the plaintiffs] detention, neither theSupreme Court nor this court had ever held that ali-ens captured on foreign soil and detained beyond

U.S. had any constitutionalrights--under the Fifth Amendment, the EighthAmendment, or otherwise."). As it was not clearlyestablished in 2004 that the Fifth and EighthAmendments to aliens detained atGuantanamo Bay--where the Supreme Court hassince held the Clauseptainly was not ctearly established in 2004 that theFifth and Eighth Amendments apply to aliens heldin Iraq and Afghanistan--where no cour~: has heldan) constitutional right applies. As we explained in£~sz/ ~/, tb~e Cou~: in Bo~medie~e

confined its constitutional

’only’ to the extraterritorial reach of the SuspensionClause" and "disclaimed any intention to disturbexisting law governing the extraterritorial reach ofany constitutional provisions, other than the Sus-pension Clause." 563 F.3d at 529 (quotingBoumediene, 553 U.S. at 795). As in Rasu! /I,therefore, the defendants here are protected fromthe plaintiffs’ constitutional claims by qualified im-munity/~

*5 The plaintiffs contend the Supreme Court inBoumediene adopted a flexible approach that leavesopen the possibility of the extraterritorial applica-tion of constitutional provisions other than the Sus-pension Clause and claim that our decision inMaqa/e/q v. Gates, 605 F.?d 84 (D.C.Cir.20!0), ac-curately interprets Boumediene. Because the threealien Bagram detainees in AI MaqMeh soughthabeas corpus relief, the decision addresses onlythe applicability of the Suspension Clause. We non-etheless noted that the Supreme Court’sBoumediene decision %xplored the more generalquestion of extension of constitntional rights andthe concomitant constitutional restrictions on gov-emmenta~ power exercised extraterritor~ially andwith respect to noncitizens." ict at 93. The courtdiscussed three factors the Supreme Court identi-fied as relevant in determining the reach of the Sus-pension Clause: *~(1) the citizenship and status ofthe detainee and the adequacy of the processthrough which that status determination was made;(2) the nature of the sites where apprehension andthen detention took place; and (?) the practicalobstacles inherent in resolving the prisoner’s enti-tlement to the writ." id. at 94 (quoting Yo~mediese,553 U.S. at 766). ?-he first factor weighed in favorof extending the habeas corpus right to the threecause, ~ike the Yoz~r,~ediene detainees, they were ali-ens held by the American milita~:. /t at 95-96.According to the court, the three received !ess dueprocess than the ,~o~medi~e detainees’ /dThe second and third ~)actors, however, weighed

O~antanamoBa).--where, according to the Supreme Coups theUnited States has d¢.i.~e~o sovereignb

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Boumediene, 553 U.S. at 755 --the court concluded"the same simply is not tree with respect to Ba-gram." AI Maqm~eh, 605 F.3d at 97. The UnitedStates has not demonstrated an intent to exercisesovereignty over Bagram ~with permanence."Moreover, "Bagram, indeed the entire nation ofAfghanistan, remains a theater of war." ]d Thesame is true of Iraq. The Supreme Court expresslystated in Bouraediene that, if Guantanamo Bay~were located in an active theater of war, argumentsthat issuing the writ would be ’impractical or anom-alous’ would have more weight." 553 U,S. at 770.We concluded "that under both Eisentrager andYoumediene, the [habeas corpus] writ does not ex-tend to the Bagram confinement in an active theaterof war in a territow under neither the de facto norde jure sovereignty of the United States and withinthe territoD’ of another de jure sovereign."Maqa/eh, 605 g.3d at 98. Thus, even under theplaintiffs’ view of Boumediene, we have nonethe-less held that the Suspension Ctause does not applyto Bagram detainees. They offer no reason--and wesee none ourselves--why the plaintiffs’ Fifth andEighth Amendment claims would be any strongerthan the Suspension Clause claims of the Bagramdetainees.

*6 [4][5] The plaintift% urge us to follow thenow-optional Saucier procedure and decide, first,whether they have ~’alleged a deprivation of a con-stitutional right at all," Pearson, 129 S.Ct. at 816(internal quotation marks omitted), although wemay ultimately conclude any such right was notclearly established at the time of the defendants’ al-leged misconduct,sys The Saucier procedure,however, is not appropriate in most cases. Oftenis plain that a constitutional right is not cIearlytabiished but far from obvious whether in fac~ thereis such a right." ]d In such a case, deciding the ex-istence of the constitutional right ~e! non is ~as es-sential!) academic exercise," in(, that ’~runs counterto the older, wiser judicial counsel not to pass onquestions of" constitutionalib ~. unless suc?dication is unavoidable’ M. at 821 (ellipsis in ori-ginaI) (interna quotation marks and citations omit~

ted), and results in the "substantial expenditure ofscarce judicial resources on difficult questions thathave no effect on the outcome of the case," id at818. The Saucier approach can also preclude an af-fected party from obtaining appellate review of adecision that could significantly affect its furore ac-tions. In’. at 820. If a court decides that the defend-ant violated the plaintiff’s constitutional right but isentitled to qualified immunity because the right wasnot clearly established at the time, the "prevailing"defendant presumably would not be able to appealthe adverse constitutional holding. Id (citing KaLkav. Ha~’k, 215 F,3d 90, 96 n. 9 (D.C.Cir.2000)("Normally, a parb’ may not appeal ftom a favor-able judgment.")); c;f Camreta ~:, Greene, --U.S.

, , 131 S.Ct. 2020, 2028-33,-L.Ed.2d - , (2011) (official whoprevails on qualified immunity in district court maynot be able to obtain appellate review, notwith-standing availability of certiorari review to officialwho prevails on qualified immunity on appeal). Asin Rasu] ]I, we believe "[c]onsiderations of judicialrestraint favor exercising the Pearso~ option withregard to [the] plaintiff%’ Bivens claims." 563 F.Sdat 530.

[6] In Ras~l II we had an alternativebasis--apart from qualified immunity---on which todismiss the plaintiffs’ Bk;ens claims--that ~federalcourts cannot fashion a Bivens action when ~specialFactors’ counsel against doing so," 563 P.3d at 532m 5~ We detem~ined the ;danger of obstructingU.S. national security policy is one such f~ctor"that counsels against a~lowing a Bivens claim toproceed/~ Id The same rationale applies here.~ The district cou~ co~ectly concluded thatlowing a Bive~s action to be brought against Amer-ican miiitao~ officials engaged in war would disruptand hinder the ability of our armed forces ~to actdecisively and without hesitation in defense of our

and national interests." Det~in~s479 F.Supp.2d at i05. The Supreme Court long agorecog~ ized as much ~n

*7 Such trials would hamper the war effort and

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bring aid and comfort to the enemy. They woulddiminish the prestige of our commanders, notonly with enemies but with wavering neutrals. Itwould be difficult to devise more effective fetter-ing of a field commander than to allow the veryenemies he is ordered to reduce to submission tocall him to account in his own civil courts and di-vert his efforts and attention from the militar)’ of-fensive abroad to the legal defensive at home.Nor is it unlikely that the result of such enemy li-tigiousness would be a conflict between judicialand military opinion highly comforting to en-emies of the United States.

339 U.S. 763,779, 70 S.Ct. 936, 94 L.Ed. 1255(1950). And in Sanc~}ez-E~Dinoza ~:. Reagan, 770F.2d 202, 209 (D.C.Cir.1985), our court noted that~the special needs of foreign affairs must stay ourhand in the creation of damage remedies againstmilitary and foreign policy officials for allegedlyunconstitutiona! treatment of foreign subjects caus-ing injury abroad." In SancJ~ez-Espinoza, Nicara-guan citizens, none of whom resided in the UnitedStates, sued, inter Mia, the President, the CIA dir-ector, the then-current as wet! as former secretariesof state and the then-secretary of defense allegingthey had ~authorized, financed, trained, directedand knowingly provided substantial assistance" toNicaraguan rebels who engaged in "summary exe-cution, murder, abduction, torture, rape, wounding,and the destruction of private prope~ and publicfacilities." ~’d. at 205 (quoting Am. Compl. ~ 31,81). We concluded that *~the danger of foreign cit-izens’ using the courts in [such situationt to obsmac~the foreign policy of our government is sufficientlyacute that we must leave to Congress the judgmentwhether a damage remedy should exist." ]d at 209.As in Raszd i~~, we see no basis for distinguishing~his case fromeven if the defendants were not shielded by quali-fied immunity and the plaintiffs could ciaim theprotections of the Fifth and Eighth Amendments,we would decline to sanction a Bi~,e~s cause of ac-tion because special factors counsel against doing so.

B. The ATS Claims[7][8] Rasu~’ ]I also governs our resolution of

the plaintiffs’ ATS claims alleging violations of thelaw of nations. In addition to their Bivens claims,the Rasu] plaintiffs ~brought three claims for viola-tions of the taw of nations pursuant to the [ATS]based on the defendants’ alleged infliction of~prolonged arbitrary detention,’ ~torture,’ and*cruel, inhuman or degrading treatment.’ *~ ~~Rasu] I, 512 F.3d at 654 (citations omitted). We de-termined the defendants’ alieged tortious con-duct--"the detention and interrogation of suspectedenemy combatants"--was ~incidental to [their] le-gitimate employment duties" because it wastype of conduct the defendants were employed toengage in." Id at 658-59. Because the defendantshad acted within the scope of their employment, weheld the ATS claims "were properly res@ed asclaims against the United States that are governedby the FTCA" and upheld their dismissai for failureto exhaust administrative remediesY-~ Id660-61 (internal quotation marks and bracketsomitted). The plaintiffs here bring similar claimsagainst similar (and, in the case of defendant Rums-fold, identical) defendants. And like the Ras~~ de-fendants who, we held, were acting within thescope of their the defendantshere--who engaged in the same conduct--were act-ing within the scope of their employment as wellSee id at 654-61. The plaintiffs argue the Westfal~Act does not cover *~egregious torts that violatecogens nornas" because the Act grants immunity fora ~ ~negtigent or wrongful act or omission’ ~ only.Appellants’ Br. 46 (quoting 28 U.S.C. § 2679(b)(I)) The plaintiffs argue ~wrongfuF’ is ambiguous andshould be interpreted in light of the Act’s legislative

which, the contend, reveals~wrongfu" was not intended to encompass eare-gious torts that violate j~s cogens norms We expli-citly r~ected this argument in Ras~Z L where, whileacknowledging the plaintiffs had ~piainly atleged~seriousty criminal’ conduct," we explained that~"the ai egafions of serious crimina]ib do not aterour conclusion that the defendants conduct was in-cidental to authorized conduct,’ 5!2 F,3d at 659-60

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Accordingly, the district court correctly held thatthe Westfatl Act applied and correctly substitutedthe United States as the defendant under the FTCA.Fy20 The FTCA "required the plaintiffs to file anadministrative claim with either the Department ofDefense (DoD) or the appropriate military depart-ment before bringing suit." ii at 661 (citing 28C.F.R. § 14.1). "[W]e view the failure to exhaustadministrative remedies as jurisdictional." td As inRasu/, the "record is devoid ... of any suggestion"the plaintiffs filed an administrative claim withDoD or a military department, Id The district courtthus properly dismissed the ATS claims underFRCP 121b)11) for lack of subject matter jurisdic-tion.

*8 [9] The plaintift% raise one argument not ad-dressed in Rasu/t or It. The Westfa!l Act does notimmunize a federal emp!oyee/official from a suit"brought for a violation of a statute of the UnitedStates under which such action against an individu-al is otherwise authorized." 28 U.S.C.2679(b)(2)(B). The plaintiftE claim the ATS, underwhich they brought their claims far violations ofthe law of nations, is a United States statute thatpermits a private cause of action against a federalemployee/official. Therefore, the plaintiffs contend,their claims fall within an exception to the Westfal!Act and they should be permitted to proceed againstthe individual defendants, not the United States.

The district court in Rasu] I rejected this argu-ment, explaining that the ATS w2~ ~’is stricdy ajurisdictional statute" that "does not confer rightsnor does it impose obligations or duties that, if viol-ated, would trigger the Westfall Act’s statutory’ ex-

~;N:2 414 26, .37-38(D.©.C2006). The Supreme Court has aIso rejecteda simi!ar argument. In U~i~ed Sm~es v. Smi~ 499U.S. t60, 1il S.Ct. 1180, Ii3 L.Ed.2d 134 (199I),a former A>my sergeant and his wilt sued the A~)doctor who delivered their baby in Itaty, a~legi~gthe doctor’s negligence caused brain damage to thebaby. The U~;ited States sought to substitute itselfas the de~2endam pursuant to the Gonzalez Act, 10

U.S.C. § 1089, which "provide[d] that in suitsagainst military medical personne! for torts com-mitted within the scope of their employment, theGovernment is to be substituted as the defendantand the suit is to proceed against the Governmentunder the FTCA." Staid< 499 UoS. at 162-63.W~ib the plaintiffs’ appeal was pending, the Con-gress enacted the Westfall Act. The United Statesthen relied on the Westfalt Act, rather than theGonzalez Act, to substitute itself as the defendantand the Supreme Court accordingly considered theWestfall Act’s applicability. At the time, two courtsof appeals had held that the Gonzabz Act protected"only military, medical personne! who commit tortswithin the United States and not those committingtorts abroad." Id. at 17t. The Smith plaintiffs ar-gued their claim was therefore not precluded by theGonzalez Act and that their claim fell within thestatutory exception to the Westfall Act because theGonzalez Act %uthorized" their claim. The Su-preme Court rejected the plaintiffs’ argument. It ex-plained that it ~’need not decide whether a tort claimbrought under state or foreign taw could be deemedauthorized by the Gonzalez Act" because theplaintiffs’ contention ’;that a claim for malpracticeinvolves ’a violation of’ the Gonzalez Actl }iswithout merit. Nothing in the Gonzatez Act im-poses any obligations or duties of care upon mitk-ary physicians. Consequently, a physician allegedlycommitting malpractice under state or foreign lawdoes not ’violate’ the Gonzalez Act," Id at 174.

More importantly, the Supreme Court has clari-fied that *~the ATS is a jurisdictional statute creat-

no new- causes of action?’ Sosa v. AI-varez-Mac,hai~, 542 U.S. 692, 724, 124 S.Ct. 2739,!59 L.gd.2d 718 (2004); ii at 729 (~’All Membersof the Court agree that § t3,50 is ony jurisdiction-aU’) Thus, as with the Gonzabz Act, nothing inthe ATS ~imposes any obligations or duties of careupon" the defendants. Smit~, 499 U.S. at 174; ac-

(D.D.C.2004) ¢~The plain ~anguage of [ti~e ATS] ..does not con~%r rights nor does it impose obliga-tions or duties that, if violated, wo~ald trigger the

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[Westfall Act’s statutory violation] exception."),@~[~d on other grounds, 445 F.3d 427(D.C.Cir.2006) (dismissing complaint on politicalquestion ground), cert. denied, 549 U.S. 1t66, 127S.Ct. 1125, 166 L.Ed.2d 892 (2007); Schneider v.K,;ssinge,,’, 310 F.Supp.2d 25 t, 266-67(D.D.C.2004) (dismissing complaint on politicalquestion ground but holding, alternatively, thatATS "cannot be violated for purposes of [WestfallAct’s statutory violation exception]"), aj~d on othergrounds, 412 F.3d 190 (D.C.Cir.2005) (affirmingdismissal as political question), cert. denied, 547U.S. 1069, 126 S.Ct. 1768, 164 L.Ed.2d 515 (2006). The plaintiffs ask us to ignore the Supreme Court’sSosa decision.F~-~s We can no more ignore Su-preme Court precedent than could the district court.Accordingly, we hold that the plaintiff%’ claim un-der the ATS alleges a violation of the law of na-tions, not of the ATS, and therefore does not violatea statute of the United States within the meaning ofsection 2679(b)(2)(B)Y~2~

*9 Notwithstanding Sosa’s plain statement that~the ATS is a jurisdictional statute," 542 U.S. at724, the dissent believes the ATS incorporates thelaw of nations and that a violation of the taw of na-tions thus constitutes a violation of the ATS suffi-cient to satis~ the Westfall Act’s statutory violationexception. See Dissenting Op. at 17-25. The re-spondent in Sosa advanced a similar argu-ment--’~that the ATS was intended not simply as ajurisdictional grant, but as authority got the creationof a new cause of action for torts in violation of in-ternational law." 542 U.S. at 713. The SupremeCourt rejected ’~that reading [of the ATS as]plausibb," explaining that, ~[a]s enacted in 1789,the ATS gave the district courts ~cognizance’ ofcertain causes of action, and the term bespoke agrant of jurisdiction, not power to mold substantivelaw." ]i Moreover the Court noted, the positioningof the ATS ~’in § 9 of the JudiciaO Ac% a statuteothem,dse exciusivey concerned with federal-courtjurisdiction, is itself suppo~: for its strictly jurisdic-tional nature,-" ~:s M ]-he Court therefore foundit %nsurprising ,, that an authori7 on the historical

origins of the ATS has written that ’ section 1350clearly does not create a statutory cause of action,’and that the contrary suggestion is ’simply frivol-ous.’ " ld. (quoting William R. Casto, The FederalCourts" Pro~ective Jurisdic~ffon over Torts Commie-ted in Violation of the Law of Nations, t8 Conn.L.Rev. 467, 479, 480 (!986)); see also Casto,supra, at 479 ("The [ATS] is purely jurisdictional,and the first Congress undoubtedly understood thisto be the case.").

The dissent’s citations to Sosa --and to Fil-ar~iga v. Pena-~bMa, 630 F.2d 876 (2d Cir.1980)---confirm that the ATS is a jurisdictional statuteonly and that any claim brought under the ATS al-leges a violation of the law of nations and the com-mon law, not of the ATS itself. See Dissentingat 3-4, 12, 18-19.

[10] The dissent contends that Supreme Courtprecedent establishing ~’that the domestic law of theUnited States recognizes fine law of nations," Sos<542 U.S. at 729-30 (citing cases), ;;indicates thatsection 1350 itself effectively incorporates the lawof nations," Dissenting Op. at 19. The Sosa Court’sstatement ;;that the domestic law of the UnitedStates recognizes the taw of nations," however, isbest understood to refer to the common law of theUnited States, not its statutory law. The most recentprecedent the Court cited to support its statementconfirms this understanding. See Sos< 542 U.S. at730 (" ;[t]nternational disputes implicating . ourrelations with foreign nations’ are one of the~narrow areas’ in which )~dera/common taw ’tinues to exist." (dlipsis in origina0 (emphasis ad-ded) (quoting re)c Z~aus., Inc. > Ra&%~~’~ M~eri-ats, Inc., 451 U,S. 630, 641, I0! S.Ct. 2061, 68L.Ed.2d 500 (t98t))); see also Dissenting Op. at(quoting William A Fletcher, In~ernagiona/RNh~s /~ imericc~n Courts, 93 Vs. L.Rev. 653, 665

"10 Sosa unequivocalIy holds that the ATS is ajurisdictional statute oni), Sos< 542 U,S, at 729(~All Members of" the Court agree that § 1350 isonly jurisdictional,"). A claim brought under the

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ATS therefore does not allege % violation of a stat-ute of the United States" satis~’ing the Westfall Actexception. 28 U.S.C. § 2679(b)(2)(B).

Co The Declaratory Judgment Claim[1 I][12] The plaintiffs also seek a declaration

that the acts alleged in their amended complaint areunlawful and violate the U.S. Constitution, militaryrules and guidelines and the law of nations. Am.Compl. ~ 264(a). As discussed supra, however, theplaintiffs have not alleged a cognizable cause of ac-tion and therefore have no basis upon which to seekdeclaratory relief. Nor does the Declaratory Judg-ment Act (DJA), 28 U.S.C. § 2201, provide a causeof action. It is a "we!l-established rule that the De-clarator?’ Judgment Act sis not an independentsource of federal jurisdiction,’ Rather, ’the availab-ility of [declaratory] relief presupposes the exist-ence of a judicially remediable right.’ " C & ESe~,~/s., ]~c. of fgashington v. D.C. ~a~er & SewerAuth., 310 F.Jd 197, 20! (D.C.Cir.2002) (quotingSchd/ing v. Rogers, 363 U.S. 666, 677, 80 S.Ct.1288, 4 L.Ed.2d 1478 (1960)); see also SkeZ@ OdCo. v. PhiH@s Pe~ro~eum Co., 339 U.S. 667, 571,70 S.Ct. 876, 94 L.Ed. 1194 (1950) ( "The opera-tion of the Declaratov Judgment Act is proceduralonly. Congress enlarged the range of remediesavailable in the federal couKs but did not extendtheir jurisdiction." (internal quotation marks andcitation omitted)).

For the foregoing reasons, we affirm the dis-trict court’s judgment of dismissal.

So ordered

EDWARDS, Senior Circuit Judge, dissenting:The plaintiff-appe!tants in this case allege that

they were subjected to acts of torture and abusewhile being detained at U.S. miitary facilities inAfghanistan and iraq, Each appellant was eventu-all) released without being charged with a crime.Appeilants filed suit, alleging civit claims under 731-

~" q/?v-arco£cs, 403 U.S. 388. 9i S.Ct, t999, 29L.Ed.2d ~19 (197I), and the Alien To~ Statute (’

section 1350 " or "ATS"), 28 U.S.C. § 1350, as wellas claims for declaratory relief. Following a mo-tions hearing, the District Court granted the ap-pellees’ separate motions to dismiss. See ]n re Iraqand Afgkanis~an Detainees L#ig. ( "Detainees LRig."), 479 F.Supp.2d 85 (D.D.C.2007). Although I donot disagree with the court’s judgment dismissingappellants’ Bivens claims and their claims for de-claratory relief, I dissent from the court’s disposi-tion of appellants’ claims under section 1350.

Section 1350 says that "[t]he district courtsshall have original jurisdiction of any civil actionby an alien for a tort only, committed in violationof the law of nations." In my view, the SupremeCourt’s decision in Sosa v. A~varez-Machain, 542U.S. 692, 124 S.Ct. 2759, 159 L.Ed.2d 718 (2004),confirms that appellants may pursue a cause of ac-tion under section 1350 for deliberate torture per-petrated under color of o~qcia! authority, and theWestfaI1 Act does not bar these claims. It is ironicthat, under the majoritT’s approach, Un#ed Sm~es@ffcia~s who torture a foreign national in a foreigncountry are not subject to suit in an action broughtunder section 1550, whereas fore~Nn officials whocommit official torture in a foreign country may besued under section !350.

"!1 The Government’s interpretation of Sosa,which is endorsed by the majority, is strikingly in-complete. The Government first cites a passagefrom Sosa in which the Court says that the ATS "isa jurisdictional statute creating no new causes ofaction." Appellees’ Br. at 47 (quoting Sosa, 542U,S, at 724), From this, the Government concludesthat, "[u]nder Sosa, it is indisputable the ATS is nota federal statute that is capable of being violated.’~Id at 48.

The Court’s decision in Sosa is much more nu-anced than the Government would have it, AndSosc~ surel) does not foreclose actions under theATS seeking redress for ofibcia] torture. Rather,contrary to the Government’s c aims, Sos~ makesthe following critical points:

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All Members of the Court agree that § 1350 isonly jurisdictional. We also agree, or at leastJUSTICE SCALIA [in his concurrence] does notdispute, that the jurisdiction was originally un-derstood to be available to enforce a small num-ber of international norms that a federal courtcould properly recognize as within the commonlaw enforceable without further statutory; author-

Whereas JUSTICE SCALtA sees _. develop-merits as sufficient to close the door to furtherdependent judicial recognition of actionableternationai norms, other considerations persuadeus that ~ke judicial po~,:er skould be exercised ontke understanding tkat tke door is still ajar sub-ject so vNilant doorkeeping, and tkus open to anarro’# class of international norms toa~:. ErieRailroad Co. v. To~)kins, 304 U.S. 64, 58 S.Ct.817, 82 L.Ed. 1188 (1938),] did not in terms barany judicial recognition of new substantive rules,no matter what the circumstances, and post-Erieunderstanding has identified limited enclaves inwhich federal courts may derive some substantivelaw in a common law way.

We think it would be unreasonable to assume thatthe First Congress would have expected federalcourts to lose all capacity to recognize en%rce-able international norms simply because the com-mon law might lose some metaphysical cachet onthe road to modern realism. Later Congressesseem to have shared our view. The position wetake today has been assumed by some federalcourts %r 24 years, ever since the Second Circuitdecided ~<ilar~iga ~, ?e~a.-/rala, 630 F,2d 876(2d Cir. 1980), and for practical purposes thepoint of toda}’s disagreement has bees focusedsince the exchange between Judge Edwards andJudge Bork-h: 7W--Ore~ ~ Lib3~an Arab R@ub/ic,726 F.2d 774however, has not only expressed no disagreement

with our view of the proper exercise of the judi-cial power, but has responded to its most notableinstance by enacting legislation supplementingthe judicial determination in some detail.

542 U.S. at 729-31 (citation omitted)(emphasis added). As this court recently noted inSaleh v. Titan Corp., 580 F.3d 1 (D.C.Cir.2009), itis clear that Sosa "opened the door a crack to thepossible recognition of new causes of action underinternational law (such as, perhaps, torture) if theywere firmly grounded on an international con-sensus." ld at 14.

"12 It is particularly noteworthy that the Su-preme Court’s opinion in Sosa says: ~’The positionwe take today has been assumed by some federalcourts for 24 years, ever since the Second Circuitdecided Fi/arfiga v. Pena-Ira/a, 630 F.2d 876 (2dCir. 1980)." 542 U.S. at 731. Eilartiga held that

deliberate torture perpetrated under color of offi-cial authorib~ violates universally accepted normsof the international law of human rights, regard-less of the nationalib~ of the parties. Thus,whenever an alleged torturer is found and servedwith process by an alien within our borders, §! 350 provides federal jurisdiction.

630 F.2d at 878, The Filartiga court constnaedsection l s~0 %or as granting new rights to aliens,but simply as opening the federal courts for adju-dication of the rights already recognized by interna-tional law." Id at 887; see also Sosa, 542 U.S. at730 (stating that "the Court is bound by the law ofnations which is a part of the law of the land")(quoting The ?;ereide, t3 U.S. (9 Crunch) 388, 423.3 L.Ed. 769 (18i5) (Marshall; CJ.)); Tet-Ore~

726 F.2d 774, 780

(~[S]ectios t350 itself provides a right to sue for!eged violations of the law of nations." (%otnote

F/lart@c: is firm h: its holding that ~there arefew, if an) issues in international law today on

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which opinion seems to be so united as the limita-tions on a state’s power to torture persons held in itscustody." ]d. at 881. This court recently echoed thisview in Sale& noting that "torture committed by astate is recognized as a violation of a set~led inter-national norm." 580 F.3d at 15. The Governmentdoes not suggest othep~ise. So it is clear beyonddebate that official torture violates the law of na-tions.

The fact that the plaintiffs in this case have al-leged that United States officials committed torturedoes not counsel against a cause of action under theATS. ~qe statute does not exclude claims againststate actors. And there is no evidence that recentcongressional statutes addressing torture and de-tainee treatment, respectively, intended to preemptsuits under section t350. In fact, there is evidenceto the contrary.

Only one question remains: Does the FederalEmployees Liabilky Reform and Tort Compensa-tion Act of !988 (*~Westfal! Act"), Pubi. No.t00-694, 102 Star. 4563, bar appellants’ ATSclaims from going forward? After careful consider-ation of Sosa and the case law construing the West-fall Act, I am convinced that the WestfaH Act doesnot bar appellants’ claims. An action that is cogniz-able under section 1.350 falls within the WestfaltAct% exception for ’~violation[s] of a statute of theUnited States under which such action[s] against anindividual [are] otherwise authorized," 28 U.S .C. §2679(b)(2)(B). The Government argues that section1350 cannot fall within this exception because theATS is merely a jurisdictional statute~ Appellees’Br. at 47. In my view, Sosa requires the oppositeconclusion: Appellants’ claims arising under section1350 must fall within the statutor}, exception to theWestfall Act, because the ATS is a federal statutethat incorporates substantive international nomqsand thereb? directt)’ authorizes recovery for delib-erate to~mre perpetrated under color of officiai

"13 The Government ignores the f%ct that sec-tion 1350, unlike the congressional grant of f%derai

question jurisdiction, ~’was enacted on the congres-sional understanding that courts would exercise jur-isdiction by entertaining some common taw claimsderived from the law of nations." Sosa, 542 U.S. at73i n. 19. "Unlike section 1331, which requiresthat an action ’arise under’ the taws of the UnitedStates, section 1350 does not require that the action’arise under’ the taw of nations, but only mandatesa ;violation of the law of nations’ in order to createa cause of action." Ye~’-Oren, 726 F.2d at 779(Edwards, J., concurring). Section 1350 incorpor-ates the law of nations--including the prohibitionagainst deliberate torture perpetrated under color ofoffici!l authority--that ca~ be ~violated" within themeaning of the section 2679(b)(2)(B) exception tothe Westfalt Act. I therefore conclude that, on therecord before us, the District Court has jurisdictionover appellants’ complaint alleging official tortureand the appellants have a viable cause of action.Consequently, the District Court erred when it dis-missed appellants’ claims arising under section 1350.

I. BACKGROUNDA, The United States Has Consistently and Re-peatedly Condemned the Use of Torture

"Torture has long been illegaF’ in our nation.151 CONG. REC. 30,756 (2005) (statement of Sen.Graham). Domestically, torture, along with otherpunishments of ~’unnecessary cruet)’," has beenproscribed as a violation of the Eighth Amendmentsince the nineteenth centares’. £ste~% ,.,. Gamble, 429U.S. 97, 102, 97 S.Ct 285, 50 L.E&2d 25I (1976)(citing ~N[kerso~ v. Uta& 99 U.S. 130, !36, 25L.Ed. 345 (1879)). Congress has also prohibitedtorture that occurs abroad, m2king such conduct afedera~ crime punishable by fines and up to 20years of imprisonment, and even life imprisonmentor death should the toKure result in a fatalib~, 18U.S.C. § 2340A. Congress further created a causeof action against any individual who commits tor-ture ’under actual or apparent authori%, or color oflaw, of !ny foreign nation," regardless of the vic-tim% nationaliV or the geograph c location of the

acts. ’ro~<~ure Victim Protection Act

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("TVPA"), Pub.L. No. 102-256, § 2(a), 106 Star.73, 73 (1992) (codified in 28 U.S.C. § t350 (note)).

Within the context of a military conflict, Con-gress has declared, in both the Detainee TreatmentAct of 2005 ("DTA") and the Military Commis-sions Act of 2006 ("2006 MCA"), that "[n]o indi-vidual in the custody or under the physical controlof the United States Government, regardless of na-tionalib’ or physical location, shall be subject tocruel, inhuman, or degrading treatment or punish-ment," DTA, Pub.L. No. !0%148, div. A, title X, §1003(@, 119 Star. 2680, 2739 (codified at 42U.S.C. 2000dd(a)); 2006 MCA, Pub.L. No.I09-366, § 6(c)(1), !20 Star. 2600, 2635 (codifiedat 42 U.S.C. § 2000dd0(1)), and has further prohib-ited any "treatment or technique of interrogationnot authorized by and listed in the United StatesArmy Field Manual on Intelligence Interrogation."DTA, Pub.L. No. 109-148, div. A, title N,1002(@, 119 Star. at 2739 (codified at t0 UoS.C. §801 (note)). See also I8 U.S.C. § 2441 (making warcrimes committed by or against a member of theU.S. Armed Forces or a U.S. national punishable byfine, imprisonment, and’or death, regardless ofwhere the crime occurred).

"t4 The Executive Branch has been similarlyresolute in its prohibition of to,are. The UnitedStates signed the Convention Against Torture andOther Creel, Inhuman or Degrading Treatment orPunishment Against Torture") in1988. In 2000, the U .S. Depar~nent of State, withinput from the Department of Justice and other fed-eral departments and agencies, submitted its initialcompliance report to the United Nations CommitteeAgainst Torture, which stated:

Torture is by law theUnited States. tt is categorically denounced as amatter of policy and as a too] of state authorityEver;,, act constituting torture under the [United

Convention consti-tutes a criminal offence under the law of" theUnited States. No official of the Government,6edera!, state or local, civilian or’ militao, is

thorized to commit or to instruct anyone else tocommit torture. Nor may any official condone ortolerate torture in any form. No exceptional cir-cumstances may be invoked as a justification oftorture. United States law contains no provisionpermitting otherwise prohibited acts of torture orother cruel, inhuman or degrading treatment orpunishment to be employed on grounds of exi-gent circumstances (for example, during a "stateof public emergency") or on orders from a superi-or officer or public authority, and the protectivemechanisms of an independent judiciary are notsubject to suspension. The United States is com-mitted to the fiall and eft~ctive implementation ofits obligations under the Convention throughoutits territory.

Initial Report of the United States of Americato the United Nations Committee Against Torture ~6, U.N. Dec, CAT/Ci28/Add.5 (Feb. 9, 2000).

Specifically with regard to military detainees,President George W. Bush, in a statement issued in2004, affirmed that

America stands against and will not tolerate tor-ture .... American personnel are required to com-ply with all U.S, laws, including the UnitedStates Constitution, Federal statutes, includingstatutes prohibiting torture, and our treat), obliga-tions with respect to the treatment of all detain-ees .... Torture is wrong no matter where it occurs,and the United States will continue to lead thefight to eliminate it everywhere.

Statement on United Nations International Da?in Support of Victims of Torture, 40 WEEKLYCOMP PRES. DOC.. I167, 1167-68 (June 2&2004). tn 2009, President Barack Obama, throughan executive order, instructed that ’~[detainees] shal~in all circumstances be treated h~xmanely and shal!not be su~ected to violence to !i~ and person(including murder 0f a1 kinds, mutilation, crudtreatment, and tenure), ~or to outrages upon per-sonal dignity (including humiliating and degradingtreatment)." Exec. Order No. 13,49i, 3 C.F.R. t99.

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200 (2009). See also id at 20001 ("Effective im-mediately, an individual in the custody or under theeffective control of an officer, employee, or otheragent of the United States Government, or detainedwithin a facitib, owned, operated, or controlled by adepartment or agency of the United States, in anyarmed conflict, shall not be subjected to any inter-rogation technique or approach, or any treatmentrelated to interrogation, that is not authorized byand listed in Army Field Manual 2-22.3.’%

B. Official Torture Violates the Law of Nations"15 The United States’ condemnation of offi-

cial torture is simply a reflection of a firmly estab-lished international norm: Torture perpetrated undercolor of official authority unequivocally violatesthe law of nations. Every circuit that has addressedthe issue has concluded that official torture violatescustomar), international law. See, e.g., Kiobel v.Royal Dz~tch Petroleum Co., 621 F.3d 111, 120 (2dCir.2010); id. at !55 (Loyal, J., concurring in thejudgment); AMana v. De] Monte Fresh Produce,?£A., Inc., 416 F.3d 1242, 1250-53 (llth Cir.2005)(per curtain); Kadic v. KaradiA 70 F.3d 232,243-44 (2d Cir.1995); Hilao v. Estate of Marcos,25 F.3d 1467, 1475 (9th Cir.1994); Te]-Oren, 726K2d at 788 (Edwards, A, concurring); id at 8!9-20(Bork, J., concurring). Indeed, the Supreme Courtin Sosa favorably cited the Second Circuit’s state-ment in Filartiga that ’Xhe torturer has becomean enemy of all mankind." 542 U.S. at 732 (quotingFi]artiga, 630 F.2d at 890); see also id at 762(Breyer, J., concurring) ("Today international lawwill sometimes similarly reflect not only substant-ive agreement as to certain universally condemnedbehavior but also procedural agreement that univer-sal jurisdiction exists to prosecute a subset of thatbehavior. That subset inciudes torture, genocide,crimes against humanib, and war crimes." (citation

International agreements signed by the UnitedStates support the conc!usion that torture is a viola-tion of customac~, international ~aw. Article 2 of theConvention Against Torture provides that ~*[e]ach

State Parr),, shall take effective legislative, adminis-trative, judicial or other measures to prevent suchacts of torture in any territory under its jurisdic-tion." Art. tI, para. 1, signed Apr. t8, !988, S.TREATY DOC. NO.. 100-20, 1465 U.N.T.S, 85;see also S. EXEC. REP. NO. 10!-30, at 1.3 (1990)(noting that definition of torture in the ConventionAgainst Torture "correspond[s] to the common un-derstanding of torture as an extreme practice whichis universally condemned"). In addition, theGeneva Convention of !949, art..3 ("Common Art-icle 3"), prohibits torture "at any time and in anyplace" in an "armed conflict not of an internationalcharacter." See Hamdan ~,. Rz~m%@la( 548 US. 557,630, 126 S.Ct. 2749, 165 L.gd2d 723 (2006)(explaining that the phrase "conflict not of an inter-national character’’ was used in contradistinction toGeneva Convention Common Article 2% applica-tion to conflicts between nations, such that Com-mon Article 3 applies to the United States’ conflictwith al Qaeda), Ever since the Vietnam War--thefirst war in which the United States had to considerthe Geneva Convention% application to prisoners inan insurgency environment--United States militapipolicy has been to apply Common Article 3 to alldetainees upon capture. JAMES F. GEBHAP, ff)T,THE ROAD TO ABU GHP-~AB: US ARMY DE-TAINEE DOCTRINE AND EXPERIENCE !20(2005); see also Witliam H. Taft, IV, The Law qKArmed Conflict A.~er 9/! 1: Some Salient Fea~z~’res,28 YALE J. INT% L. 319, 321 (2003) ("Terroristsforfeit any claim to POW status under the hws ofarmed conflict, but they do not fort%it their right tohumane treatment--a right that belongs to all hu-mankind, in war and in peace.").

"16 In sum, there is universal agreement "inthe modern usage and practice of nations," Fibar~iga, 630 F.2d at 883, that official torture violatesthe law of nations, Any court addressing torturedoes not write on a clean slate.

Ho ANALYSISA Appe~ta~s Ha~’e a Cause of Actio~ UnderSection 1350 To Seek Redress for Official Tor~

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The Alien Tort Statute, 28 U.S.C. § 1350, readsas follows: "The district courts shall have originaljurisdiction of any civil action by an alien for a tortonly, committed in violation of the law of nationsor a treat), of the United States." The statute waspassed by Congress as part of the Judiciav Act of1789, ch. 20, § 9, 1 Star. 73, 77, but it was notmuch cited before the Second Circuit’s !980 de-cision in Filarfiga. See 630 F.2d 876 (holding that acause of action for official torture is cognizable un-der section 1350). Fi/artiga led to the well-chronicled debate in Tel-Ore~ v. Lib)’a~ .4rab Re-

726 F.2d 774 (D.C.Cir. 1984), betweenJudge Bork and me about the purpose and scope ofsection 1350.

In Te/-Oren, I argued that section 1350provided both federal jurisdiction and ~’a right tosue for alleged violations of the taw of nations,"i.e., customao~ international law. Id at 780. I wenton to emphasize

the extremely narrow scope of section 1350 juris-diction under the Fi/artiga formulation. JudgeKaufman characterized the torturer in Fi/artiga asfollows: ~’Indeed, for purposes of civil liabilib’,the torturer has become--like the pirate and slavetrader before him-- hostis humani generis, an en-emy of a!l mankind." Fi/artiga, 630 F.2d at 890.The reference to piracy and slave-trading is notfortuitous. Historically these offenses hetd a spe-cial place in the law of nations: their perpetrators,dubbed enemies of al! mankind, were susceptiNeto prosecution by any nation capturing them.

Judge Bork viewed section !350 differently.He argued that ~it is essential that there be an expli-cit gra~at of a cause of action before a privateplaintiff be allowed to ent%rce principles of intema~tionaI ~aw in a i<ederal tribunal." ~’d at 80t (Bork, f,concurring); see also id (criticizing the Fiar~Nc~coup’s assumed cause of action under section I350as ~fundame~talty wrong and ce~ain to produce

pernicious results"). Judge Bork also tentatively in-dicated that only offenses akin to the principal of-fenses against the law of nations cited by Black-stone--violation of safe conducts, infringement ofthe rights of ambassadors, and piracy--would beactionable under the statute. Id. at 813- ! 6.

Both Judge Bork and ~ agreed that the functionand scope of section 1350 needed clarification fromthe Supreme Court. td at 775 (Edwards, J., concur-ring) ("This case deals with an area of the law thatcries out for clarification by the Supreme Court.");id. at 823 (Bork, J., concurring) ("Since sectiont350 appears to be generating an increasing amountof litigation, it is to be hoped that clarification willnot be long delayed."). T~e Supreme Court obligedin Sosa.

"17 The issue before the Supreme Court inSosa was whether respondent Alvarez, a Mexicancitizen, could bring a claim against petitioner Sosa,a Mexican citizen hired by the Drug EnforcementAdministration, for an alleged violation of the tawof nations arising from his arbitra~ detention. TheCourt first noted that ~;[section 1350] was intendedas 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, itheld that

it]he jurisdictional grant is best read as havingbeen enacted on the understanding that the com-mon law would provide a cause of action for themodest number of interaationaI law violationswith a potential for personal liabitiE~ at thetime .... We assume, too, that no development inthe ~-vvo centuries from the enactment of § !350 tothe birth of the modern line of cases beginningwith Fiiar~iga v. Pe~a-fra~a has categoricallyprecluded federal courts f?om recognizing a c~aimunder the taw of nations as an element of corn-men law; Congress has not in an) relevant wayamended @ 1350 or limited civil common lawpower by another statute.

Still, there are good reasons for a restrained con-

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ception of the discretion a federal court shouldexercise in considering a new cause of action ofthis kind. Accordingly, we think courts should re-quire any claim based on the present-day law ofnations to rest on a norm of international charac-ter accepted by the civilized world and definedwith a specificiLv comparable to the features ofthe 18th-century paradigms we have recognized.

Id at 724-25 (citation omitted). The Court thusplainly rejected Judge Bork’s suggestion that onlyviolations of the law of nations extant as of 1789could be brought pursuant to the ATS. See id at729 (rejecting Justice Scalia’s argument that federalcourts should be precluded from "recognizing anyfurther international norms as judicially enforceabletoday").

Ultimately, the Court in Sosa rejected the re-spondent’s complaint on the ground that arbitrary’detention did not violate a "norm of customau in-ternational law so well defined as to support thecreation of a federal remedy." Id. at 738. However,the Court surely did not foreclose a cause of actionunder section 1350 based on allegations of orificialtorture. Quite the contrary,. Sosa %pened the door"to causes of action--such as official torture--thatare ;’firmty grounded on an international con-sensus." Saleh, 580 F.3d at 14.

Bo Torture Committed by UoSo Officials ls Ac-tionable Under the ATS

tn this case, appellants allege that they weredetained in UoS. militaW custody in A~hanistanand Iraq and subjected to ’~torture and other cpael,inhuman or degrading treatment or punishment" asa result of ~the orders and derelictions of Defendant

Rumsfeld and high-level commanders"Consolidated Am. Compl. for DeclaratoV Reliefand Damages ~ 1, 8 (Jan. 5, 2006), r<~ri~ed i~Appendix 25, 27. The definition of to~ure is a mat-ter of some controversy, see, e.g., Judith Resnik,

Cour£s, !i0 COLUM. L.P~V. 579, 608-t6 (2010),~o be decided by the District Cou~ in the first in-stance. Assuming, however, that the offenses attic-

ulated in appellants’ complaint constituted tor-ture-which the Government does not dispute in itsbrief--I believe that appellants’ claims are action-able under section 1350.

"18 Having established that the ATS grants acause of action for clear and definite violations ofthe law of nations, the next question is whether analien may sue a state actor under section 1350 toseek redress for torture, ~ can find nothing in thetext or histou of section 1350 to warrant excludingstate actors from its coverage.

The plain text of section I350 --"It]he districtcourts shall have original jurisdiction of any civilaction by an alien for a tort only, committed in viol-ation of the law of nations or a trea), of the UnitedStates"--does not exclude lawsuits against stateactors. There continues to be much debate about theorigin and original purpose of section 1350. See,e.g.~ Thomas H. Lee, The Safe-Conducg Theory ojthe Aiie~ Torg Ngatuge, 106 COLUM. L.REV. 830(2006); William S. Dodge, The ~istorical Orgiesof the Alie~ Tor~ Stagute: A Rezpo~se to t~e"Orginalis~s, " t9 HASTINGS INTL & COMP.L.REV. 221 (1996); William R. Casto, Zhe Federa~Courts" Protecgive ~ur,;sdic~io~ over Torts Commie-ted i~ Vio~atio~ g~ the L~ gf zVations, 18 CONN.L.REV. 467 (1986). However, I can find no com-pelling evidence in these or any other a~ictes, thewords of the statute itsdg legislative materials, orthe applicaNe case law to suggest that, in enactingsection 1350, Congress made a ’legislative judg-ment," Sosa, 542 U.S. at 727, to preclude suitsagainst U.S. officials brought under section !350.The same holds true for Congress’ more recent en-ac~men*s of ~he TVPA, the DTA, and ~he 2006MCA. In fact, as noted in Pa~ I, s~pra, both the Le-gislative and Executive Branches have long con-demned to~ure penetrated under color of of~cia~authoriU No~ only has to~ure been condemned,~[~?o~:ure has long been i11egaI" i~ our nation. 151CONG. REC. 30,756 (2005) (statement of Sen.

Although the Court has he!d that

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%pecial factors" counsel against a remedy for aconstitutional violation under Bivens whenever theinjury’ arises out of activity.’ "incident to [military’]service," United States v. Stanley, 483 U.S. 669,681, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987)(internal quotation marks omitted); see also Chap-,veil v. P/allace, 462 U.S. 296, !03 S.Ct. 2362, 76L.Ed.2d 586 (1983) (denying Bivens action to milk-ary personnel suing superior officers for injuriessustained in course of military service), this reason-ing does not translate to actions brought pursuant tosection t350. This is so because, when section t350was enacted, Congress expressly gave the federalcourts jurisdiction over "[torts] committed in viola-tion of the law of nations." 28 U.S.C. § 1350. SeeSos< 542 U.S. at 724 (noting that section 1350best read as having been enacted on the understand-ing that the common law would provide a cause ofaction for the modest number of internationa! lawviolations with a potential for personal liability- atthe time"). By contrast, constitutional claims underYivens are not brought pursuant to any statute; theSupreme Court in Bivens "fashion [ed] a new, judi-cially crafted cause of action," Correctional Servs.CoU). v. Malesko, 534 U.S. 6I, 68, t22 S.Ct. 515,151 L.Ed.2d 456 (2001), without relying on a con-gressional imprimatur akin to section t 350.

"19 This court’s recent holding in Saleh that aprivate government contractor could not be liablefor torture under section 1350 also does not contro]the disposition of ;:his case. Untike the appellants inthe cu~ent case, who seek relief against state actorsboth in their individual and official capacities, theplaintiffs in Saleh were "unwilling "to assert that thecontractors [were] state actors." 580 F.3d atSaleh’s holding--that, "[a]Ithough torture commit-ted by a state is recognized as a vio]ation of asettled international norm, that cannot be said ofprivate actors," id --therefore has no bearing on theavafiabiiity of a cause of action under section 1350based on aiiegations of deliberate torture perpet-rated under coior of official authorit>.

The SMote. decision also points out that,

though "Congress has frequently legislated on [thesubjects of torture and war crimes] in such statutesas the TVPA, the Military, Commissions Act, 10U.S.C. § 948a et seq., the federal torture statute, 18U.S.C. 2340 - 2340A, the War Crimes Act,U.S.C. § 244t, and the Uniform Code of MilitaryJustice, 10 U.S.C. § 80I et seq., " it has never cre-ated a cause of action for victims of toreare com-mitted by private contractors. 580 F.3d at !6. Butagain, these facts are of little moment here becausethis case involves state actors, not private contract-ors, and all of the statutes cited in Saleh werepassed long after the Second Circuit’s landmark de-cision in FiiarYga recognized a cause of action for@~cia/ torture under section 1350. Furthermore,neither the text of the aforementioned statutes northe coinciding legislative histories indicate any in-tent by Congress to limit or preempt Filartiga~ in-terpretation of section 1350. In fact, there are con-gressional statements to the contra©’. See S.REP.NO. 102-249, at 4 (t991) (noting that "[s]ection1350 has other important uses and should not beplaced" by TVPA); H.R.REP. NO. 102-367, at 3(1991), reprinted in !992 U.S.C.C.A.N. 86 (same);15! CONG. REC. 30,757 (2005) (statement of Sen.McCain) (noting that torture-related provisions ofthe Detainee Treatment Act, which were re-passedas part of the 2006 MCA, *’do not eliminate or di-minish any private right of action otherwise avail-able").

Finally, although this court in Sanc-hez-E<pinoza v. Reagan, 770 F.2d 202, 206-07(D.C.Cir.1%5)~ appeared to hold that no suits canbe brought under section 1350 against U.S. officialsin their personal capacities, Congress supersededthis holding when it passed the Westfall Act. Sanc-hez-Espi~oza is inapposite because the cou~t dis-missed the plaintiffs’ claims in that case on the

of co~on lan~: We know,however, that Congress may oveKide a judicialcision resting on a common taw principle. S~e

S.Ct, 1784, 68 L.Ed.2d i14 (198!)(’ [T]he questio~[is] whether the legislative scheme spoke dlrectl> to

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Page 2!

a question ... not whether Congress had affirmat-ively proscribed the use of federal common law."(quotation omitted)); see also id at 317 ("[W]estart with the assumption that it is for Congress, notfederal courts, to articulate the appropriate stand-ards to be applied as a matter of federal law."(footnote and internal quotation marks omitted)).Congress did just that when it passed the WestfaltAct.

*20 The Westfall Act "limits the relief avail-able to persons injured by Government employeesacting within the scope of their employment."61n£edSta~’es v. Stair& 499 U.S. I60, 161, 11I S.Ct.1180, 113 L.Ed.2d 134 (t991). However, what issignificant here is that the Westfal! Act exceptsfrom its grant of immunity al! civil actions "broughtfor a violation of the Constitutiofl of the UnitedStates" or "brought for a violation of a statute ofthe United States under which such action againstan individual is otherwise authorized." 28 U.S.C.§§ 2679(b)(2)(A), (b)(2)(B).

In my view, Congress’ decision to overrule~es~fa//v. Erwin, 484 U.S. 292, 108 S.Ct 580, 98L.Ed.2d 6!9 (!988), and to codi~, the official im-munib’ doctrine, including the section2679(b)(2)(A) and (b)(2)(B) exceptions--which areexplicit waivers of immunity--clearly preemptedany preexisting common law applications of im-munity with respect to the same matters. See PVes&fidL 484 U.S. at 300 ("Congress is in the best posi-tion to provide guidance %r the complex and oftenhighly empirical inquiv into whether absolute ira-

is warranted in a particularThere is no qualifier to section 2679(b)(2)(B) forsituations in which "the basis for jurisdiction re-quires action authorized by the sovereign as op-posed to private wrongdoing," Sa~c/~ez-Es’pi~oza,770 F.2d at 207, nor is there any indication in thelegislative histo© that Congress intended for suchan exception to apply, H,R REP. !00-700 (1988),~’epri~ted i~ !988 U.S.C C.A.N. 5945. ’The availab-ility of imm~niV from section 1350 actions there-[ore depends on the application of the Westfall Act.

Co Does the Westfall Act Bar Claims AssertingOfficial Torture?

Federal courts, with "great caution," are au-thorized by statute to recognize a cause of actionunder section 1350 for "definite" and "accept[ed]"violations of the law of nations. Sosa, 542 U.S. at732. Ti~e United States has consistently and re-peatedly condemned the use of official torture. Andit is undisputed that "deliberate tomare perpetratedunder cotor of official authority viota~es universallyaccepted norms of the international law of humanrights, regardless of the nationality; of the parties."F~fardga, 630 F.2d at 878. However, in order forappellants’ suits for official torbare to proceed, theymust fall within the Westfall Act’s exception for ac-tions "brought for a vio]ado~ of a sta~zcte of theUnited States under which such action against anindividual is otherwise authorized." 28 U.S.C. §2679(b)(2)(B) (emphasis added).

The answer to the question whether the West-fall Act bars appellants’ claims turns on how section!350 is viewed. There are at least two possible con-stmctions of the ATS:

(1) the ATS is a statute that merely set’yes as ajurisdictional vehicle for violations of the law ofnations; or

(2) the ATS itself incorporates the law of nationsand furnishes jurisdiction over causes of actionbased on violations of definite and accepted prin-ciples under the law of nations.

"21 If the latter construction is correct, it fol-lows that section !350 is capable of being violate&This is not an easy issue, and I would be naive tosuggest otherwise. But because I conclude that theATS incorporates the law of nations, i believe thatit is a %tatute" that fits the Westt;all Act exception.

The Cou~x i~ Sos~ made clear d~at section 1350differs from other jurisdictiona~ statutes, such as 28US.C, ~ t331, because it allows coups to ente~ain

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claims derived from the taw of nations. See StephenSatterfield, Note, Still Crying Out for Claril?cation:The Scope of Liabi/ib" Under the Alien Tort StatuteAfter Sos< 77 GEO. WASH. L,REV.. 216, 221-22(2008) (deeming section 1350 an " ;interactive’ jur-isdictional statute" because it "laid the jurisdiction-al foundation that allowed the newly formed districtcourts to hear causes of action arising under the tawof nations"). As the Court says in Sosa, "the ATSwas meant to underwrite litigation of a narrow setof common law actions derived from the taw of na-tions." 542 U.S. at 721. Therefore, pursuant to theATS, federal courts have an obligation to recognizecauses of action based on dear and definite viola-tions of the law of nations. And, as the Court noted,the law of nations may be enforced under section1350 "without further statutory authoriO/. " ]d at729 (emphasis added).

In assessing the ATS, Sosa read the Court’sprecedents to hold that

"United States courts apply international law aspart of our own in appropriate circumstances";

o "International law is part of our law, and mustbe ascertained and administered by the courts ofjustice of appropriate jurisdiction, as often asquestions of right depending upon it are dulypresented for their determination"; and

o "The Court is bound by the law of nationswhich is a part of the law of the land."

Sosa, 542 U.S. at 729-30 (brackets and cita-tions omitted). As Judge William A. Fletcher hasnoted, "It]he Court’s decision [in Sosa ] _. necessm-fly implies that the federal common law of custom-aV intemationa~ law is federal law in the suprem-acy-clause sense." William A. Fletcher, interna-tional Numcm Rights i~ .4merica~ Courts, 93 VA,L.REV. 653, 665 (2007). To m< this indicates thatsection ~550 itseif ef~2zcfively incorporates the lawof nations

not be doubted, however, is that it would be ironicto conclude that the Westfatl Act bars claims rest-ing on allegations of official torture. Under the ma-jorib"s approach, despite the fact that torture haslong been illegal under United States law, seesupra, a United States off?cia/ who tortures a for-eign national in a foreign countr7 is not su~ect tosuit in an action brought under section 1350, where-as a foreign q~cia! who tortures a foreign nationalin a foreign country may be sued under section1350. Kg., FHartiga, 630 F.2d 876 (allowing actionto proceed under section 1350 against Paraguayanofficial for torture committed in Paraguay).

*22 This is a bizarre result, because, in enact-ing the WestfaH Act, Congress apparently meantonly to immunize common-law torts against federalofficials. See H.R.REP. NO. 100-700, at 2 (!988),reprinted in t988 U.S.C.C.A.N. 5945, 5945 (notingthat purpose of bill was to "provide immunity forFederal employees from personal liabilib, for com-mon law torts committed within the scope of theiremployment" (emphasis added)); id at 6, reprintedin 1988 U.S.C C.A.N. at 5950 ("Common law tortsare the routine acts or omissions which occur daffyin the course of business and which have been re-dressed in an evolving manner by courts for, atleast, the last 800 years."); see generally Karen Lin,Note, An U~intended Doub/e Standard cf Liability:?2he Effect of the F/es~mq Act on the Alien TortClaims Act 108 COLUM. L.REV. 1718, 1740-45(2008) (arguing that Congress only intended theWestfall Act to apply to state-law torts). Indeed, theSupreme Court’s decision in ~Ves(fa// v. Erwin, 484U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988),which Congress specifically overvaled in passingthe Westfall Act, addressed immunity in the contextof a common-law negligence suit against federalemployees. There is no evidence to indicate thatCongress meant to address or foreclose actions un-der section !350 brought against federal oLficialsfor to~ure; clear violations of the law of nations,suci~ as to~:ure, are not akin to the t) pes of" routineacts or omissions" that Congress appears to havehad in mind Therefore it is ironic to say the least

My !ine of analysis can be disputed. What can-

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that "it!he Westfall Act ... has proved to be a prac-tically ’impenetrable shield’ for [ATS] claimantsagainst individual U.S. officials."Lin, 108COLUM. L.REV. at 1736-57,

2. Deconstrucging t,~e ~/esO’~all ActThe Westfall Act provides as follows:

The remedy against the United States providedby [the Federal Tort Claims Act] for injury orloss of properb’, or personal injury or deatharising or resulting from the negligent or wrong-ful act or omission of any employee of the Gov-ernment while acting within the scope of his of-fice or employment is exclusive of any other civilaction or proceeding for money damages by reas-on of the same subject matter against the employ-ee whose act or omission gave rise to the claim oragainst the estate of such employee. Any othercivil action or proceeding for money damagesarising out of or relating to the same subject mat-ter against the employee or the emp!oyeds estateis precluded without regard to when the act oromission occurred.

28 U.S.C. § 2679(b)(1) (emphases added). Insum, the Wesffall Act prohibits civil suits againstU,S. employees in their individual capacitiesarising out of the scope of their employment.

As noted above, however, the Westfatl Act ex-cepts from its grant of immunity all civi! actions%rought for a violation of the Constitution of theUnited States" or %rought for a violation of a stat-ute of the United States under which such actionagainst an individual is othep~ise authorized." 28U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).

*23 Appellants argue that their section 1350claims fall within the Westfall Act’s exception for~violation[s] of a statute of the United States underwhich such action[sI against an individual [are]otherwise authorized,’ 28 ~..SC. § 2679(b)(2)(B).!n response, the Government relies on the SupremeCourt’s decision in ~inited States’ > S~qit~h, 499 U.S.i60, tll S.Ct. !1%, 113 L.Ed.2d I34 (1991), to

support the proposition that "this exception to theWestfat! Act ... [applies! only to federal statutesthat provide both a cause of action and the sub-stantive taw which the employee is alleged to haveviolated." Appellees’ Br. at 47 (emphasis in origin-al). The Government also refers to the Ninth Cir-cuit’s decision in AS~arez-Machain ~.’. U;qi~ed States,331 F.3d 604 (gth Cir.2003) (on banc), rev’d onother grounds" sub nora. Sosa v. Alvarez-Machain,542 U.S. 692, 124 S.Ct. 2739, t59 LoEd.2d 718(2004).

The Ninth Circuit concluded that % claim un-der the [ATS] is based on a violation of internation-al law, not of the [ATS] itself." 331 F.3d at 631.Several district courts have followed this line ofanalysis. See, e.g., Al- Zahrani v. RumsfeM, 684F.Supp.2d 103, 114-!6 (D.D.C.2010); Rasul v.Rumsfeld, 414 F.Supp°2d 26, 37-38 (D.D.C.2006)(issue not appealed); Bancoult > McNamara, 370F.Supp.2d !, 9-10 (D.D.Co2004), In my view, thesedecisions are flawed, because they fail to acknow-ledge a critical distinction between the GonzalezAct--the statute at issue in Smith --and section 1350.

The Gonzalez Act, like the Wesffall Act, is agrant of federal employee immunib. Specifically, itprovides that ~in suits against military’ medical per-sonnel for torts committed within the scope of theiremployment, the Government is to be substituted asthe defendant." Smith, 499 U.S. at 162 (citing 10U.S.C. §§ !089(a), (b)). tn Smith, the plaintiffs sueda U.S. military physician for negligence in federatcourt, and the United States sought to substitute it-self for the physician under the Westfatl Act. ~eplaintiffs objected, arguing that their claim wouldhave been permitted under the Gonzalez Act due toan implicit exception in that statute, and that, as aresult, the claim should be exempted from WestfallAct immunib due to § 2679(b)(2)(B)’s exceptio~for claims brought pursuant to a federal statute. TheSupreme Court disagreed, holding that: "[n]othingin the Gonzalez Act imposes any obligations or duties of care upon mi!itaE} ph)sicians. Consequentl),

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a physician allegedly committing malpractice understate or foreign law does not ’violate’ the GonzalezAct." Smith, 499 U.S. at 174.

The Court’s decision in Smith seems plainly in-apposite here. In contrast to the Gonzalez Act, sec-tion 1550 is a statute enabling the ~ederal courts toimpose liabilits’--not limit liability. Because section1350 express@ incorporates the "law of nations," itis a statute that can be violated.

3o The A TS Is Not a Jurisdictional Statute Akin toSecgon 133!--It Is Therefore a "Statute" Suj§q-cient To Satisfy the ~’esb@ll Act Exception

~24 ~e Supreme Cou~ emphasized in Sosathat, in comparing the ATS with the grant of feder-al-question jurisdiction, 28 U.S.C. 1331,"[s]ection 1350 was enacted on the congressionalunderstanding that coups would exercise jurisdic-tion by ente~aining some common law claims de-rived from the law of nations; and we know of noreason to think that federal-question jurisdictionwas extended subject to any comparaNe congres-sional assumption." 542 U.S. at 731 m 19. Thus, ifCongress repealed section 1350, federal coupswould have no authorig~ today to recognize com-mon law causes of action ~r violations of custom-aO~ international law, such as to~ure. See Mo~amedv. Rajoub, 634 F.3d 604, 609-10 (D.C.Cir.2011)(holding that appdlant had no cause of action forviolation of customa~’ intemationa~ taw pursuant to28 U.S.C. ~ I331); see a&o Sosa, 542 U.S. at 712(’[W]e think that at the time of enac~em [of theATS] the jurisdiction enabled federaI cou~s to hearclaims in avev limited catego~, defined by the lawof nations and recognized at common law."). Thismakes section t350 inherently different from otherjurisdictional statutes, such as section !33], andquite different from the Gonzabz Act. See ge,qer-

Sa~erfield, 77 GEO. WASH. L.REV_ at221-22; William S. Dodge, Yri@i~g Erie: Custom-a0 l~er~a~io~a[ L~’,~ i~ ~f~e U,S. Lega~ @,;~em~.~er Sos~ v, A/v~’ez--M~chc~i~< i2 TULSA J.COMP. & IN.:FL L. 87, 97-100 (2004) (analyzingSos~% discussion of congressiona~ intent in enact-

ing section !350 as compared to section 1331).

Section 1350 parallels section 301(a) of theLabor Management Relations Act of !94% Section301(a) provides that

Suits %r violation of contracts between an em-ployer and a labor organization representing em-ployees in an industry affecting commerce asdefined in this chapter, or between any such labororganizations, may be brought in any districtcourt of the United States having jurisdiction ofthe parties, without respect to the amount in con-troversy or without regard to the citizenship ofthe parties.

29 U.S.C. § !85(a). In Textile V/urkers Unionq,f America v. Lincoln ?4ills of Alabama, 353 U.S.448 (1957), the Supreme Court held that section301(a) "authorizes federal courts to fashion a bodyof federal law for the enforcement of these collect-ive bargaining agreements," 353 U.S. at45t~despite the fact that the plain text of this pro-vision only speaks to federal jurisdiction. See alsoSosa, 542 U.S. at 726 (citing Lincoln Mills as anexample of a "haven" of federal common law). Justas section 30!(a) provides jurisdiction and allowsfederal courts to create federal common law to en-force collective bargaining agreements, section1350 provides jurisdiction and allows federal courtsto create a federal common law remedy for definiteand accepted violations of customaO’ internationallaw. in other words, it is section 1550, not interna-tional law, that gives federal courts the authority toenforce "international norms that a federa] courtclan] properly recognize as within the common lawenforceable without ~5.¢rt/~er statutoO’ authon;O,’. "S~sa, 542 U.S. at 729 Thismakes section 1350 "statuto~’ authority" sufficientto satis%~’ the Westf<atl Act exception.

*25 It might be argued that Smith should beread to bar the West£atl Act exception from apply-lag here, because section 1350 does notincorporate the taw of nations That was the viewtaken by t~e Ninth Circuit, even as that cou~ ac~

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knowtedged that the Gonzalez Act and section 1350have very different purposes. See Al-varez-Machain, 266 F.Sd at 1054. Although this ar-gument is not without force, I disagree. Like sec-tion 501(a), as interpreted by the Court in Lincoln?/fills, a federal statute may incorporate enforceablesubstantive rights even though the statute does notspell out the details of those rights. It is true thatSosa says that, since Erie Railroad Co. ~’. Tomp-kins, 504 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188(1958), "the general practice has been to look forlegislative guidance before exercising innovativeauthority over substantive law," Sosa, 542 U.S. at726; but Sosa opened the door to the recognition ofcauses of action alleging wrongs--such as officialtorture--that violate the law of nations.

tn short, I believe that Smith has no applicationhere, because, as noted above, Smith was focusedon the Gonzalez Act, not section 1550. Unlike theGonzalez Act, section 1550 is a statute authorizingthe federal courts to impose liability--not limitability. I therefore conclude that section 1350 fitswithin the exception to the Westfall Act for"violation[s] of a statute of the United States underwhich such action[s] against an individual [are]otherwise authorized," 28 U,S.C. § 2679(b)(2)(B).Accordingly, t dissent from the majorig~’s disposi-tion of appellants’ claims under section 1550.

IIL CONCLUSIONTwenPy-seven years ago, in Tet-Oren, t said

that ~’[t]his case deals with an area of the law thatcries out for clarification by the Supreme Court."726 F.2d at "775. I say the same again here.

i thought that the Court’s decision in Sosa af-forded the lower federal courts the amplificationand clarification necessary to understand how toprocess claims properly brought under section t350

Obviously, I was mistaken, Some of my col-leagues on the federal bench believe that the West-~all Act takes away what the ATS gives insofar as itallows causes of actio~ against state actors whopeoetrate to~ure under the color of official author-ib. U~timately, a~er careful consideration of this

difficult question, I think the decisions that haveendorsed this approach are misguided.

Even if ATS actions against state actors werebarred by principles of common law immunity, asthis court thought in Sanchez-Espinoza, I believethat Congress vitiated that immunity when it en-acted the Westfall Act. In my view, Congress’ de-cision to overrule ~/’es~fsl] v. Er,,fin, 484 U.S. 292,108 S.Ct. 580, 98 L.Ed.2d 619 (1988), and to codi-~ the official immuni~ doctrine, including the 28U.S.C. § 2679(b)(2)(A) and (b)(2)(B) excep-tions-which are explicit waivers of im-muniV--clearly preempted any preexisting com-mon-law applications of immunity’ with respect tothe same matters. And [ believe that actions that arecognizable under section t350 --such as allegationsof official torture--fall within the Westfall Act’sexception ~%r "violation[s] of a statute of the UnitedStates under which such action[s] against an indi-vidual [are] otherwise authorized."2679(b)(2)(B). On this last point, t agree withJudge Fletcher that Sosa "necessarily implies tha~the federal common law of customao’ internationaltaw is federal law in the supremacy-clause sense."William A. Fletcher, International I-fuman Rights inAmerican Courts, 93 VA. L.REV. 653, 665 (2007).For me this means that it is section 1350, not inter-national law, that gives fedora1 courts the authorityto enforce international norms that a federal courtcan properly recognize as within the common lawenforceable "without ~#~r~her statutor)’ authority."Sosa, 542 U.S. at 729 (emphasis added). As I see it,section 1350 is "statuto~ authoriV" sufficient tosatisfy the WestfaI1 Act exception. Some may dis-agree with my analysis, but at this point I cannot

*26 As I noted above, I think it is ~ir to saythat the developing case !aw is ironic, As one com-mentator has noted:

In the past thi~: years, the [ATS] has become animportant instrument in advancing human rightsclaims before U.S. courts. In light of this excep-tional statute, the Westfall Act’s effect of immuno


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izing U.S. officials is doubly ironic: Not only hasthe country that ted the way in allowing aliens tovindicate their rights against foreign officialsmaintained official immunib~ for its own officialseven in the face of modern human rights account-ability, but it has also done so unintentionally. Asa result, U.S. courts apply a double standard of li-ability whereby foreign officials may face liabil-ity for international law violations while U.S. of-ficials have absolute immunib for those same vi-olations.

Karen Lin, Note, An Unintended Double Stand-ard of Liability. The E:~ect of the }VesCfal[ Act o~the Alie.,~ Tort Claims AcL 108 COLUM. L.REV.1718, 1719 (2008) (footnotes omitted).

t do not agree with the courts that have helpedto create this irony by granting immunity to UnitedStates officials from ATS actions. It is hard tofathom why Congress would pass a law that makesail government officials--except our own--subjectto liability for torture committed overseas. There isnothing to indicate that Congress meant to achievethis result when the Westfall Act was passed.Maybe it is time for Congress to give the judiciarybetter directions on this matter.

FN1. Lieutenant General RicavdoSanchez, commander of the ;’CoalitionJoint Task Force-T’ from June 2003 to Ju-ly 2004 and ;~the highest-ranking U.S.itary official in lraq," Am. Compl. ~ 28;Janis Karpinski, commander of the %00thMilitary Police Brigade," which was re-sponsible for detention facilities in traq,from June 2003 to2004; and Colonei Thomas Pappas, com-mander of the ~205th Militap~,, IntelligenceBrigade" who in November 2003 assumedcommand of the ;Joint Interrogation andDebriefSng Center" at Abu Ghraib prisonnear Baghdad, lraq. ~"d ?~

FN2. de~endantsand Sanchez argued the plaintiffs c~aims

raise nonjusticiable political questions anddefendant Pappas argued the constitutionalclaims against him should be dismissed be-cause the plaintiffs’ allegations failed toconnect him to the alleged constitutionalviolations and all claims against himshould be dismissed for lack of personaljurisdiction. Because it dismissed theplaintiffs’ cases on other grounds, the dis-trict court considered these arguments moot.

FN3, ~’The holding in Bivens permits aplaintiff to bring an action in federal courtagainst a federal ogflceriemployee for theviolation of his constitutional rights, 403U.S. at 389. A Bivens suit is the federalcounterpart of a claim brought pursuant to42 U.S.C. § 1983 against a state or localofficer/employee for the violation of theclaimant’s constitutional rightsF’ Raszd ~,.Myers, 512 F.3d 644, 652 n. 2 (D.C.Cir.),vacated, -- U.S. --, 129 S.Ct. 763, 172L.Ed.2d 753 (2008),

FN4. The district court also held that theplaintiffs’ Eighth Amendment claim failed~*not only because the plaintiffs are pre-cluded from invoking hhe Constitution ....but also because the Eighth Amendmentapplies only to convicted criminals" andthe plaintiffs *’were never convicted of acrime." 479 F.Supp.2d at 103 (citing ~’,>grai~am v. ~)’ight, 430 US, 651, 664, 97S.Ct. 1401, 51 L.Ed.2d 711 (t977)). OnappeaI the plaintiffs contend their EighthAmendment claim is cognizable, Becausewe affirn~ the district court’s dismissal ofthe Amendment claim on othergrounds, we do not reach this argument.

FN5, In Ei~entrager, the Supreme Courtheld that German nationals who wereprisoned at a UoS. am~y base inand convicted of war crimes committedduring World War II had no habeas corpus

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right under the U.S. Constitution. In Ver-dugo-lL~quidez, the Court held that a Mex-icm’~ citizen whose residence in Mexicowas searched by agents of the UnitedStates Drug Enforcement Administrationcould not assert a claim under the FourthAmendment to the U.S. Constitution. TheCourt explained that it had "rejected theclaim that aliens are entitled to FifthAmendment rights outside the sovereignterritor)’ of the United States" and de-scribed holdings such as Plyler v. Doe, 457U.S. 202, 210-t2, 102 S.Ct. 2382, 72L.Ed.2d 786 (1982) (illegal atiens residingin United States protected by Equal Protec-tion Clause), and Kwong Hai ChewColding, 344 U.S. 590, 596, 73 S.Ct. 472,97 L.Ed. 576 (1953) (resident alien"person" within meaning of Fifth Amend-ment), and Bridges v. g’ixon, 326 U.S.135, 148, 65 S.Ct. 1443, 89 L.Ed. 2103(I945) (resident aliens have First Amend-ment rights), and Russian Volunteer Fleetv. United States, 282 U.S. 481, 489, 51S.Ct. 229, 75 L.Ed. 473 (t931) (foreigncorporation doing business in America en-titled to just compensation under FifthAmendment for property taken by U.S.government), and Wong ~4qng v. UnitedStates, 163 U.S. 228, 238, 16 S.Ct. 977, 4tL.Ed. 140 (1896) (resident aliens entitledto Fifth and Sixth Amendment rights), andViM ~9o v. I-topkins, 118 U.S. 356, 369, 6S.Ct. 1064, 30 L.Ed. 220 (I886)

Amendment protects residentaliens), as *’establish[ing] only that aliensreceive constitutionaI whenthey have come within the territor)’ of theUnited States and substantialconnections with this country," 494 U.S. at269 271, In the Court reaf-firmed the constitutional distinctionbetween persons present inthe UnitedStates. and persons outsidethe UnitedStates. The Court held that a federal statute

authorizing the Government to hold an ali-en who has been ordered deported beyondthe 90-day "removal period" within whichthe alien is to be deported permits the Gov-ernment to hold the alien for only a"reasonable time." 533 U.S. at 682. TheCourt explained the statute would "raiseserious constitutional concerns" if it al-lowed the Government to hold indefinitelya deportable alien present in the UnitedStates, id, but reiterated "that certain con-stitutional protections available to personsinside the United States are unavailable toaliens outside of our geographic borders,"relying on Eisen~rager and Ver-dugo-Urq~ddez. 533 UoS. at 693. InBoumediene, we held that both SupremeCourt and our own precedent "hold [ ] thatthe Constitution does not confer rights onaliens without property or presence withinthe United States?’ 476 F,3d at 991. TheSupreme Court reversed our decision inBoumediene and held, for the first time,that alien detainees held at GuantanamoBay, Cuba, can assert a habeas corpus rightunder the Suspension Clause of the U.S.Constitution. 553 U.S. 723, 128 S.Ct.2229, 171 L.Ed.2d 41; see U.S. Const. art.I, § 9, cl. 2 (Suspension Clause). As setforth i@a p. 11-17, we distinguish the Su-preme Court’s Boumediene decision.

FN6. The ATS provides: ’~qe districtcourts shall have original jurisdiction ofany civi! action by an alien for a tort only,committed in violation of the law of na-tions or a treaty of the United States." 28U.S.C, § 1350.

FNT. TAqe Federal Employees Liabitit)form and Tort Compensation Act of !988,Pub.L No. 100-~594, 102 Star. 4563(amending 28 U.S.C, 6~... 2671, 2674 2679), commonl) ret%n~ed to as the Westf~.!]Act, provides in pe~isent

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Upon certification by the Attorney Gen-eral that the defendant employee wasacting within the scope of his office oremployment at the time of the incidentout of which the claim arose, any civilaction or proceeding commenced uponsuch claim in a United States districtcourt shall be deemed an action againstthe United States under the provisions ofthis title and all references thereto, andthe United States shatl be substituted asthe paw defendant.

28 U.S.C. § 2679(d)(1). The WestfallAct makes the FTCA remedy "exclusiveof any other civil action or proceedingfor money damages." Id. § 2679@)(1).

FNS. The Restatement (Second) of Agency§ 228 (1958) provides in part:

(1) Conduct of a servant is within thescope of employment if, but only if:

(a) it is of the kind he is employed toperform;

(b) it occurs substantially within the au-thorized time and space limits;

(c) it is actuated, at least in part, by apurpose to serve the master, and

(d) if force is intentionally used by theservant against another, the use of forceis not unexpectable by the master.

FNg. The court apparently overlooked thefact that the sued defendantRums~eld in both his individual and offi-cial capacities. See Am. CompI. ~ 2,7.

FNI0. The second claim also alleges thedefendants conduct constituted cruel andunusual in violation of theFifth Amendment. R is unclear, however~how this claim differs from the plaintiffs’

first claim that the defendants violated theFifth Amendment by engaging in torture.Although an individual not yet convictedof a crime must challenge his treatment orthe conditions of his confinement under theDue Process Clause of the Fifth or Four-teenth Amendments rather than the EighthAmendment, see City of Revere v. Mass.Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct.2979, 77 L.Ed.2d 605 (1983); Iqba[ v./-/as0~, 490 F.3d 143, 168 (2d Cir.2007),rev’d on other ground sub nora. Ashcr@ v.Iqbal,- U.S.--, 129 S.Ct. t937, 173L.Ed.2d 868 (2009) (complaint failed toptea-d sufficient facts to state claim for re-lief); Es~a~e q/" Cole by Pardue v, Fromm,94 F.3d 254, 259 n. I (Tth Cir .1996), cert.denied, 519 US. 1109, 117 S.Ct. 945, 1_36L.Ed2d 8.34 (!997), he does not create twoseparate claims under either Due ProcessClause by alleging both torture and crueland unusual punishment.

FN! !. Another intervening Supreme Courtdecision-- Pearson v. Caf/ahan, 555 U.S.22_3, 129 S.Ct. 808, 8!5-t6, 818, 172L.Ed.2d 565 (2009) --hdd that a court candecide a constitutional right was notclearly established without first decidingwhether the right exists. Before Pearson,courts followed the SauNer procedure, un-der which first had to determinewhether the alleged facts made out a viola-tion of a constitutional or statutoc~’ rightbefore whether the wasclearly established at the time of the a~-leged violation. [d at 815-16; see a/soSaucier v. Katz, 533 U.S. 194, 20i, i2iS.Ct 2151, 150 L.E&2d 272 (200!).

FN12, the also cite severallaws, and

materials’~ prohibiting to:qure which, theycontend, reinforce the constitutional pro-hibkion against tom, re aad serve to put


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military, commanders and personnel on no-tice of the sorts of actions that the Consti-tution prohibits." Appellants’ Br. 24-25.

FN13. Even the plaintiffs recognize thisand ask us to "abandon [our] holdings tothe contrau." Appellants’ Br, 23, "That ar-gument is misplaced because we are, ofcourse, bound to follow circuit precedentabsent contrav authority’ from an en banccourt or the Supreme Court." United States"v. Carson, 455 F.3d 336, 384 n. 43(D.C.Cir.2006) (per curiam), cert. denied,549 U.S. 1246, 127L.Ed.2d 146 (2007).

FN14. The AI Maqaleh detainees’ statuswas reviewed by the Unlawful EnemyCombatant Review Board (UECRB), notthe Combatant Status Review Tribunal(CSRT) that reviewed the Boumediene de-tainees’ status. 605 g.3d at 96, Accordingto the court, "proceedings before theUECRB afford[ed] even less protection tothe rights of detainees in the determinationof status than was the case with theCSRT." Id. The A/ Maqa/eh detainees hadno representation while the Boumedienedetainees had "personal representative[s]?’A/ Maqa/eh v. Gates, 604 F,Supp.2d 205,227 (D.D.C.2009), rev’d, 605 F.3d 84

the A/Maqa/eh detainees were not permitted tospeak in their defense but could submitonly a written statement and were not in-formed of the evidence against them sothat they lacked a meaningful opportunib’to rebut the evidence. Id.

FN15. We recognize that the Saucier ap-is "often beneficiaF and

~prom~te[ I tee development of constitu-tional precedent." Pears’o< 129 SCt. at8i8. As the Supreme Cou~ explained,some cases ~there would beconservation of judicial resources to be

had" by deciding only the "clearly estab-lished" prong, td For instance, it some-times can be "difficult to decide whether aright is clearly established without decid-ing precisely what the constitutional righthappens to be." Id. (quotation marks andcitation omitted), in other cases, the ex-planation that a right was not clearly estab-lished "may make it apparent that [the al-legations] do not make out a constitutionalviolation at all." Id

FN16. We concluded that this alternativerationale was "also unaffected by the Su-preme Court’s Boumediene decision," 563F.3d at 532 n. 5.

FN17. Again, the plaintiffs urge us to*’abandon" our hotding in Rasul II on thispoint as well. Appellants’ Br. 35.

FN18. Specifically, the Rasul plaintiffs al-leged "they were beaten, shackled in pain-ful stress positions, threatened by dogs,subjected to extreme temperatures and de-prived of adequate sleep, food, sanitation,medical care and communication." Rasut I,512 F.3d at654

FN19. In Raszd II, we stated that we could%ee nothing in the Supreme Court’sBoumediene ] decision that could possiblyaffect our disposition of" theATS claims alleging violations of the lawof nations and "therefore reinstate[d] our

with respect to those claims.563 F.3d at 528-29. The portion of Rasu/that treats the ATS claims, therefore,mains controlling law.

FN20. The ptaintif1~ also challenge the dis-trict court’s holding that the defendants ac-ted within the scope of" their em.pioymen~They contend that, ~[a]s a matxer of law,to~ure can never faA1 within the scope ofemployment of the U.S. Secretar? of

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fense and high-ranking U.S. Army com-manders." Appellants’ Br. 56. They non-etheless recognize the district court’s rulingis mandated by our precedent and~maintain the issue here [only] to preserveit." ]d They ~’respectfulty submit that thisCourt’s decisions ... in Rasul I! and Hat-bur2" Iv. Ha2~’den, 522 F.3d 413(D.C.Cir.2008),] are not well-founded andshould be reconsidered." Id at 57. We areof course bound by circuit precedent.United States v. Carson, 455 F.3d 336, 384n. 43 (D.C.Cir.2006) (per cur!am)are _. bound to follow circuit precedent ab-sent contrary authority from an en banccourt or the Supreme Court .").

FN21. The district court called it the AlienTort Claims Act (ATCA), 414 F.Supp.2dat 37-38, another name for the ATS. SeeEsZate of Amergi ex re/. AmergiPalestinian Auth., 611 F.3d 1350, 1356 n.5 (Ilth Cir.2010) (*’The fATS] is alsoknown as the Alien Tort Claims Act(ATCA), and the Alien Tort Act (ATA)."(internal quotation marks omitted)).

FN22. We did not reach the issue on ap-peal because the plaintiffs did not appealthat part of the district court’s decision. SeeRasu,l], 5!2 F.3d at 66! no 11.

FN23. The plaintiffs claim the statutory vi-olation exception language of the WestfatlAct is ambiguous and we must thereforeIook to legislative history to determine its

Because Sosa issued after theATS was enacted, the plaintiffs contend, it~’does not shed light on what Congressmeant to include in the statuto~ violationexception.’ Appellants’ Br. 53

~N24, the Court inSosa ~¢:ated that the ATS is a jurisdiction-al statute creating no new causes of acotion," it nonetheless concluded ~the statute

was intended to have practical effect themoment it became law" and explained thatthe statute’s jurisdictional grant "is bestread as having been enacted on the under-standing that the common law wouldprovide a cause of action for the modestnumber of international law violations witha potential for personal liabiliV at the time[the ATS was enacted in 1789]." 542 U.S.at 724. ~Ft~e Court recognized only three vi-olations-violation of safe conducts,fringement of the rights of ambassadorsand piracy--but assumed that nothing"categorically precluded federal courtsfrom recognizing a claim under the law ofnations as an element of common law?’at 724-25.

At the same time the Court held a newcause of action cozdd be recognized un-der the ATS, however, it cautionedcourts against doing so, noting that a"series of reasons argue for judicial cau-tion when considering the kinds ofclaims that might implement the juris-diction conferred by the fATS]." Id at725. The Court noted that its "generalpractice has been to took for legislativeguidance before exercising innovativeauthor!t,/ over substantive law" andstated it *’would be remarkable to take amore aggressive role in exercising a jur-isdiction that remained largely in shad-ow for much of the prior two centuries."td at 726. The Cou~ emphasized ~’that adecision to crea~e a private right of ac-tion is one be~er left to ~egislative judg-ment in the great m~orib~ of cases."at 727 Corr. Servs.M~eskct 534 U~S. 61, 68, 122 S.Ct. 515,151 L.Ed.2d 456 (200!);A!e;ra~d~r ~.S~dc~val. 532 U.S. 275,286-8?,S.Ct. I5ii, I49 L.Ed2d5iTFor that reason, the Court ttound itselfreluctant to in£er _. a private cause of

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action where the statute does not supplyone expressly." td Additionally, "thepotential implications for the foreign re-lations of the United States of recogniz-ing [a new cause of action under theATS] should make courts particularlywau of impinging on the discretion ofthe Legislative and Executive Branchesin managing foreign affairs." Id

FN25. In this respect, the ATS is easilydistinguishable from section 301(a) of theLabor Management Relations Act of 1947(LMRA), 29 U.S.C. § 185(a). See Dissent-ing Op. at 24. Section 30!(a) is part of anextensive stat~ato©’ enactment and, a!-though it speaks only to federal jurisdic-tion, other provisions of the LMRA estab-lish substantive lega! duties and rights.See, e.g., 29 U.S.C. §§ 186 - 87 The ATS,by contrast, is a stand-alone grant of juris-diction only.

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