 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 13, 2011                  Decided June 21, 2011

                          No. 07-5178

                ARKAN MOHAMMED ALI ET AL.,
                       APPELLANTS

                                v.

        DONALD H. RUMSFELD , INDIVIDUALLY , ET AL.,
                      APPELLEES


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


        Appeals from the United States District Court
                for the District of Columbia
                      (No. 05cv01378)


     Cecillia D. Wang argued the cause for the appellants. Lucas
Guttentag, Jennifer Chang Newell, Kate Desormeau, Steven R.
Shapiro, Paul Hoffman, James P. Cullen, Bill Lann Lee, Arthur
B. Spitzer, David Rudovsky and Erwin Chemerinsky were on
brief.
     Stephen A. Saltzburg was on brief for amici curiae National
Institute of Military Justice et al. in support of the appellants.
    William J. Aceves was on brief for amici curiae Human
Rights & Torture Treatment Organizations in support of the
appellants.
                                  2

     Robert M. Loeb, Attorney, United States Department of
Justice, argued the cause for the appellees. Barbara L. Herwig,
Michael L. Martinez, Mark E. Nagle, Stephen L. Braga and
Ryan E. Bull, Attorneys, were on brief.
    Before: SENTELLE , Chief Judge, HENDERSON , Circuit
Judge, and EDWARDS, Senior Circuit Judge.
     Opinion for the Court filed by Circuit Judge HENDERSON .
     Dissenting opinion filed by Senior Circuit Judge EDWARDS.
     KAREN LE CRAFT HENDERSON , Circuit Judge: Four Afghan
and five Iraqi citizens captured and subsequently held in
Afghanistan and Iraq, respectively, by the United States military
sued Donald Rumsfeld, former Secretary of the United States
Department of Defense, and three high-ranking Army officers1
(collectively, defendants) under the Fifth and Eighth
Amendments to the United States Constitution, the Alien Tort
Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth
Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, seeking
damages and declaratory relief as the result of their treatment
while in U.S. custody. The district court granted the defendants’
motion to dismiss all six claims and the plaintiffs appeal the
dismissal of their constitutional and ATS claims only. For the
reasons set forth below, we affirm the district court’s judgment.



     1
      Army Lieutenant General Ricardo Sanchez, commander of the
“Coalition Joint Task Force-7” from June 2003 to July 2004 and “the
highest-ranking U.S. military official in Iraq,” Am. Compl. ¶ 28; Janis
Karpinski, commander of the “800th Military Police Brigade,” which
was responsible for detention facilities in Iraq, from approximately
June 2003 to May 2004; and Colonel Thomas Pappas, commander of
the “205th Military Intelligence Brigade” who in November 2003
assumed command of the “Joint Interrogation and Debriefing Center”
at Abu Ghraib prison near Baghdad, Iraq. Id. ¶¶ 29-30.
                                3

                                I.
     The amended complaint alleges the following facts. Arkan
Mohammed Ali is an Iraqi citizen who was held at Abu Ghraib
and other military facilities in Iraq for almost one year, from
approximately July 2003 to June 2004. Am. Compl. ¶ 17. He
alleges he was beaten to the point of unconsciousness; stabbed
and mutilated; stripped naked, hooded and confined in a wooden
phone booth-sized box; subjected to prolonged sleep deprivation
enforced by beatings; deprived of adequate food and water and
subjected to mock execution and death threats. Id. Thahe
Mohammed Sabar is an Iraqi citizen who was held at Abu
Ghraib and other military facilities in Iraq for about six months
from approximately July 2003 to January 2004. Id. ¶ 18. He
alleges he was severely beaten, sexually assaulted and
humiliated, deprived of adequate food and water, intentionally
exposed to dangerously high temperatures for prolonged periods
and subjected to mock executions and death threats. Id.
Sherzad Kamal Khalid is an Iraqi citizen who was held at Abu
Ghraib and other military facilities in Iraq for about two months
from approximately July 2003 through September 2003. Id.
¶ 19. He alleges he was frequently and severely beaten, sexually
assaulted and threatened with anal rape, deprived of adequate
food and water, intentionally exposed to dangerously high
temperatures and subjected to “mock executions, death
threats . . . and prolonged sleep deprivation enforced by
beatings.” Id. Ali H. is an Iraqi citizen who was held at Abu
Ghraib and other military facilities in Iraq for about four weeks
from August to September 2003. Id. ¶ 20. He alleges the U.S.
military intentionally withheld and delayed necessary medical
treatment, intentionally inflicted “pain after surgery by dragging
him from one location to another and forcefully ripping away
the surgical dressing,” intentionally exposed him to infection by
leaving his surgical wound half-bandaged and deprived him of
adequate food and water. Id. Najeeb Abbas Ahmed is an Iraqi
citizen who was held at Abu Ghraib and other military facilities
                                4

in Iraq for two separate periods, the first from approximately
May 2003 to July 2003 and the second from approximately July
2003 through December 2003. Id. ¶ 21. He alleges U.S.
soldiers held a gun to his head, threatened him with death and
with life imprisonment at Guantanamo Bay, sexually assaulted
him, stepped and sat on his body while he was in extreme
restraints, humiliated him by chanting racial epithets while
videotaping and photographing him, held him in an outdoor cage
at temperatures exceeding approximately 120 degrees
Fahrenheit, intentionally deprived him of sleep for prolonged
periods, confiscated medication for his high blood pressure and
heart disease and intentionally deprived him of medical care
after he “suffered more than one heart attack and a possible
stroke in detention.” Id. Mehboob Ahmad is a citizen of
Afghanistan who was held by the U.S. military at the detention
facility located at Bagram Air Force Base (Bagram) and at other
military facilities in Afghanistan for approximately five months
from June to November 2003. Id. ¶ 22. He alleges U.S. soldiers
placed him in restraints and positions calculated to cause pain,
intimidated him with a vicious dog, questioned him while he
was naked, threatened his family and subjected him to sensory
deprivation. Id. Said Nabi Siddiqi is a citizen of Afghanistan
who was also held at military facilities in Afghanistan, including
Bagram and the Kandahar detention facility, from July to
August 2003. Id. ¶ 23. He alleges he was beaten, placed in
restraints and positions calculated to cause pain, subjected to
“verbal abuse of a sexual nature,” humiliated by being
photographed naked, denied water, intentionally deprived of
necessary medication, intentionally exposed to dangerous
temperatures for prolonged periods and deprived of sleep. Id.
Mohammed Karim Shirullah is a citizen of Afghanistan who
was held at Bagram and other military facilities in Afghanistan
for approximately six months, from December 2003 to June
2004. Id. ¶ 24. He alleges he was beaten, placed in restraints
and positions calculated to cause pain, interrogated and
                                5

photographed while naked, subjected to sensory deprivation and
placed in solitary confinement for an extended period, denied
medical care for injuries caused by abuse, intentionally exposed
to extreme temperatures for prolonged periods, doused with cold
water and deprived of sleep. Id. Haji Abdul Rahman is a citizen
of Afghanistan who was held at Bagram and other military
facilities in Afghanistan for approximately five months, from
December 2003 to May 2004. Id. ¶ 25. He alleges he was
questioned and photographed while naked, subjected to
complete sensory deprivation for twenty-four hours, placed in
solitary confinement and deprived of sleep. Id.
     The plaintiffs originally filed separate actions in four
different jurisdictions—the District of Connecticut, the Northern
District of Illinois, the District of South Carolina and the
Southern District of Texas. By an order dated June 17, 2005, the
Judicial Panel on Multidistrict Litigation transferred the cases to
the district court of the District of Columbia for coordinated and
consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.
The plaintiffs filed an amended complaint on January 5, 2006.
They allege the defendants:
    (1) formulated or implemented policies and practices
    that caused the torture and other cruel, inhuman or
    degrading treatment of Plaintiffs; and (2) had effective
    command and control of U.S. military personnel in Iraq
    and/or Afghanistan and knew and had reason to know
    of torture and abuse by their subordinates and failed to
    promptly and effectively prohibit, prevent and punish
    unlawful conduct.
Id. ¶ 26. The plaintiffs asserted six causes of action in the
district court; five asserted claims for violations of (1) the Due
Process Clause of the Fifth Amendment, (2) the Fifth
Amendment and Eighth Amendment prohibitions against cruel
and unusual punishment, (3) the law of nations prohibition
against torture, (4) the law of nations prohibition against cruel,
                                   6

inhuman or degrading treatment and (5) the Geneva
Conventions. Am. Compl. ¶¶ 235-59. The sixth cause of action
sought a declaratory judgment that defendant Rumsfeld violated
“the law of nations, binding treaties and the U.S. Constitution.”
Id. ¶¶ 260-63. In March 2006, the defendants moved to dismiss
the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure (FRCP) for lack of
subject matter jurisdiction and failure to state claims upon which
relief may be granted.2
     On March 27, 2007, the district court dismissed the
plaintiffs’ amended complaint pursuant to FRCP 12(b)(1) and
12(b)(6) “and on the ground that the defendants are entitled to
qualified immunity.” In re Iraq & Afghanistan Detainees Litig.
(Detainees Litig.), 479 F. Supp. 2d 85, 119 (D.D.C. 2007).
Regarding the constitutional claims brought pursuant to Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971),3 the district court held the Fifth and Eighth
Amendments do not apply to “nonresident aliens who were
injured extraterritorially while detained by the military in

     2
        Additionally, defendants Karpinski and Sanchez argued the
plaintiffs’ claims raise nonjusticiable political questions and defendant
Pappas argued the constitutional claims against him should be
dismissed because the plaintiffs’ allegations failed to connect him to
the alleged constitutional violations and all claims against him should
be dismissed for lack of personal jurisdiction. Because it dismissed the
plaintiffs’ cases on other grounds, the district court considered these
arguments moot.

     3
       “The holding in Bivens permits a plaintiff to bring an action in
federal court against a federal officer/employee for the violation of his
constitutional rights. 403 U.S. at 389. A Bivens suit is the federal
counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against
a state or local officer/employee for the violation of the claimant’s
constitutional rights.” Rasul v. Myers, 512 F.3d 644, 652 n.2 (D.C.
Cir.), vacated, 129 S. Ct. 763 (2008).
                                  7

foreign countries where the United States is engaged in wars.”4
Detainees Litig., 479 F. Supp. 2d at 95. The court relied on the
United States Supreme Court’s holdings in Johnson v.
Eisentrager, 339 U.S. 763 (1950), and United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), and Zadvydas v. Davis, 533 U.S.
678 (2001), and on our holding in Boumediene v. Bush, 476 F.3d
981 (D.C. Cir. 2007), rev’d, 553 U.S. 723 (2008).5 The court


    4
        The district court also held that the plaintiffs’ Eighth
Amendment claim failed “not only because the plaintiffs are precluded
from invoking the Constitution . . . , but also because the Eighth
Amendment applies only to convicted criminals” and the plaintiffs
“were never convicted of a crime.” 479 F. Supp. 2d at 103 (citing
Ingraham v. Wright, 430 U.S. 651, 664 (1977)). On appeal the
plaintiffs contend their Eighth Amendment claim is cognizable.
Because we affirm the district court’s dismissal of the Eighth
Amendment claim on other grounds, we do not reach this argument.
    5
       In Eisentrager, the Supreme Court held that German nationals
who were imprisoned at a U.S. army base in Germany and convicted
of war crimes committed during World War II had no habeas corpus
right under the U.S. Constitution. In Verdugo-Urquidez, the Court
held that a Mexican citizen whose residence in Mexico was searched
by agents of the United States Drug Enforcement Administration
could not assert a claim under the Fourth Amendment to the U.S.
Constitution. The Court explained that it had “rejected the claim that
aliens are entitled to Fifth Amendment rights outside the sovereign
territory of the United States” and described holdings such as Plyler
v. Doe, 457 U.S. 202, 210-12 (1982) (illegal aliens residing in United
States protected by Equal Protection Clause), and Kwong Hai Chew
v. Colding, 344 U.S. 590, 596 (1953) (resident alien “person” within
meaning of Fifth Amendment), and Bridges v. Wixon, 326 U.S. 135,
148 (1945) (resident aliens have First Amendment rights), and Russian
Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931) (foreign
corporation doing business in America entitled to just compensation
under Fifth Amendment for property taken by U.S. government), and
Wong Wing v. United States, 163 U.S. 228, 238 (1896) (resident aliens
                                    8

further held that even if the plaintiffs could claim constitutional
protections, special factors would counsel against inferring a
Bivens remedy. Detainees Litig., 479 F. Supp. 2d at 103-07. It
explained “that military affairs, foreign relations, and national
security are constitutionally committed to” the President and the
Congress and concluded “that authorizing monetary damages
remedies against military officials engaged in an active war
would . . . obstruct the Armed Forces’ ability to act decisively
and without hesitation in defense of our liberty and national


entitled to Fifth and Sixth Amendment rights), and Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects
resident aliens), as “establish[ing] only that aliens receive
constitutional protections when they have come within the territory of
the United States and developed substantial connections with this
country.” 494 U.S. at 269, 271. In Zadvydas, the Court reaffirmed the
constitutional distinction between persons present in the United States
and persons outside the United States. The Court held that a federal
statute authorizing the Government to hold an alien who has been
ordered deported beyond the 90-day “removal period” within which
the alien is to be deported permits the Government to hold the alien for
only a “reasonable time.” 533 U.S. at 682. The Court explained the
statute would “raise serious constitutional concerns” if it allowed the
Government to hold indefinitely a deportable alien present in the
United States, id., but reiterated “that certain constitutional protections
available to persons inside the United States are unavailable to aliens
outside of our geographic borders,” relying on Eisentrager and
Verdugo-Urquidez. 533 U.S. at 693. In Boumediene, we held that
both Supreme Court and our own precedent “hold[] that the
Constitution does not confer rights on aliens without property or
presence within the United States.” 476 F.3d at 991. The Supreme
Court reversed our decision in Boumediene and held, for the first time,
that alien detainees held at Guantanamo Bay, Cuba, can assert a
habeas corpus right under the Suspension Clause of the U.S.
Constitution. 553 U.S. 723; see U.S. Const. art. I, § 9, cl. 2
(Suspension Clause). As set forth infra p. 11-17, we distinguish the
Supreme Court’s Boumediene decision.
                                    9

interests.” Id. at 107, 105. Finally, the district court held that
qualified immunity protected the defendants from the Bivens
claims because, even if the plaintiffs possess constitutional
rights, “those rights were not clearly established at the time the
alleged injurious conduct occurred.” Id. at 108.
     As to the Geneva Conventions claims and the alleged
violations of the law of nations brought pursuant to the ATS,6
the district court held that “the defendants are entitled to
absolute immunity pursuant to the Westfall Act,” according to
which Act the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346, 2671 et seq., provides the exclusive remedy for a tort
committed by a federal official or employee within the scope of
his employment.7 479 F. Supp. 2d at 114. The court concluded
the Westfall Act includes an intentional tort, id. at 110-11, and,


     6
       The ATS provides: “The district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the United States.” 28
U.S.C. § 1350.

     7
       The Federal Employees Liability Reform and Tort
Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563
(amending 28 U.S.C. §§ 2671, 2674, 2679), commonly referred to as
the Westfall Act, provides in pertinent part:
     Upon certification by the Attorney General that the
     defendant employee was acting within the scope of his
     office or employment at the time of the incident out of
     which the claim arose, any civil action or proceeding
     commenced upon such claim in a United States district court
     shall be deemed an action against the United States under
     the provisions of this title and all references thereto, and the
     United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1). The Westfall Act makes the FTCA remedy
“exclusive of any other civil action or proceeding for money
damages.” Id. § 2679(b)(1).
                                         10

relying on the Restatement (Second) of Agency § 228 (1958),8
determined the defendants acted within the scope of their
employment because “detaining and interrogating enemy aliens”
was “incidental to their overall military obligations.” Id. at 114.
The court further ruled that neither the ATS claims nor the
Geneva Conventions claims fell within one of the statutory
exceptions to the Westfall Act. Id. at 111-13. Accordingly, the
court substituted the United States as the defendant on the ATS
and Geneva Conventions claims and then dismissed those claims
because the plaintiffs failed to exhaust their administrative
remedies as required by the FTCA. Id. at 114-15.
     The district court rejected the plaintiffs’ allegation that
Geneva Convention IV itself provides a private cause of action
and dismissed their claims for violations of the Convention for
failure to state a claim for relief. Id. at 115-17. Regarding their
claim for declaratory relief, the court held the plaintiffs lacked
standing because the named defendants no longer held their
official positions in Iraq or Afghanistan and therefore the
plaintiffs could not show “that they face a real and imminent
threat of being wronged again in the future” by those


        8
            The Restatement (Second) of Agency § 228 (1958) provides in
part:
        (1) Conduct of a servant is within the scope of employment
        if, but only if:
             (a) it is of the kind he is employed to perform;
             (b) it occurs substantially within the authorized time
             and space limits;
             (c) it is actuated, at least in part, by a purpose to serve
             the master, and
             (d) if force is intentionally used by the servant against
             another, the use of force is not unexpectable by the
             master.
                                  11

defendants. Id. at 118. Additionally, the court held the
plaintiffs, having sued the defendants in their individual
capacities only, could not seek declaratory relief.9 Id. at 118-19.
     The plaintiffs timely filed a notice of appeal on May 24,
2007, challenging the district court’s dismissal of their
constitutional and ATS claims and its dismissal of their claim
for declaratory relief. They do not appeal the dismissal of their
Geneva Conventions claims.
                                  II.
     In reviewing the district court’s grant of a motion to
dismiss, we accept as true the factual allegations of the
plaintiffs’ complaint and review the district court’s legal
conclusions de novo. Daniels v. Union Pac. R.R. Co., 530 F.3d
936, 940 (D.C. Cir. 2008) (“We review the district court’s legal
conclusions de novo . . . [and] accept as true the facts that [the
plaintiffs] allege[] in [their] complaint in reviewing the district
court’s disposition of the defendants’ motion to dismiss.”
(alterations in original) (internal quotation marks omitted)). We
address seriatim the plaintiffs’ constitutional claims, their ATS
claims and their claim for declaratory relief.
                      A. The Bivens Claims
    Each plaintiff asserts two Bivens claims, namely, the
defendants tortured him in violation of his due process right
under the Fifth Amendment and the defendants’ conduct
constituted cruel and unusual punishment in violation of the
Eighth Amendment.10 Am. Compl. ¶¶ 235-46. Our decisions in

     9
      The court apparently overlooked the fact that the plaintiffs sued
defendant Rumsfeld in both his individual and official capacities. See
Am. Compl. ¶ 27.
     10
        The second claim also alleges the defendants’ conduct
constituted cruel and unusual punishment in violation of the Fifth
                                  12

Rasul v. Myers (Rasul I), 512 F.3d 644 (D.C. Cir.), vacated, 129
S. Ct. 763 (2008), and Rasul v. Myers (Rasul II), 563 F.3d 527
(D.C. Cir.) (per curiam), cert. denied, 130 S. Ct. 1013 (2009),
govern our resolution of these claims.
     In Rasul I, four British citizens sued Secretary Rumsfeld
and several high-ranking military officials for damages arising
from their alleged illegal detention and torture at Guantanamo
Bay, Cuba between 2002 and 2004. Rasul I, 512 F.3d at 649-50.
Their complaint included claims under the Fifth and Eighth
Amendments, the ATS, the Geneva Conventions and the
Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.
We affirmed the district court’s dismissal of the constitutional
claims, explaining that “Guantanamo detainees lack
constitutional rights because they are aliens without property or
presence in the United States.” 512 F.3d at 663 (citing
Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), rev’d,
553 U.S. 723 (2008)). Furthermore, we concluded the
defendants were protected by qualified immunity because, even
assuming arguendo the detainees possessed rights under the
Fifth and Eighth Amendments, those rights were not clearly
established at the time of their detention and alleged torture. Id.


Amendment. It is unclear, however, how this claim differs from the
plaintiffs’ first claim that the defendants violated the Fifth Amendment
by engaging in torture. Although an individual not yet convicted of
a crime must challenge his treatment or the conditions of his
confinement under the Due Process Clause of the Fifth or Fourteenth
Amendments rather than the Eighth Amendment, see City of Revere
v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Iqbal v. Hasty, 490
F.3d 143, 168 (2d Cir. 2007), rev’d on other ground sub nom. Ashcroft
v. Iqbal, 129 S. Ct. 1937 (2009) (complaint failed to plead sufficient
facts to state claim for relief); Estate of Cole by Pardue v. Fromm, 94
F.3d 254, 259 n.1 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997),
he does not create two separate claims under either Due Process
Clause by alleging both torture and cruel and unusual punishment.
                                  13

at 665-67. After Rasul I issued, the Supreme Court reversed our
Boumediene decision and held the Suspension Clause extends to
nonresident aliens detained at Guantanamo Bay. Boumediene v.
Bush, 553 U.S. 723 (2008). The Court then vacated our
judgment in Rasul I and remanded for further consideration in
light of its intervening decision in Boumediene. Rasul v. Myers,
129 S. Ct. 763 (2008).
     On remand, we reaffirmed our holding that the defendants
were protected by qualified immunity and explained it was not
necessary to determine whether the Fifth and Eighth
Amendments applied to the plaintiffs.11 Qualified immunity
shields a government official from civil liability if his conduct
“does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Even if the
Rasul plaintiffs could assert rights under the Fifth and Eighth
Amendments, we explained, Boumediene did not alter the
conclusion that those rights were not clearly established at the
time of the defendants’ challenged conduct. Rasul II, 563 F.3d
at 529-30. The plaintiffs argue, as did the Rasul plaintiffs, that
the defendants should have known (that is, a reasonable person
would have known) their alleged misconduct violated the
Constitution because it “has long been settled that the




    11
        Another intervening Supreme Court decision—Pearson v.
Callahan, 129 S. Ct. 808, 815-16, 818 (2009)—held that a court can
decide a constitutional right was not clearly established without first
deciding whether the right exists. Before Pearson, courts followed the
Saucier procedure, under which they first had to determine whether
the alleged facts made out a violation of a constitutional or statutory
right before deciding whether the right was clearly established at the
time of the alleged violation. Id. at 815-16; see also Saucier v. Katz,
533 U.S. 194, 201 (2001).
                                   14

Constitution forbids the torture of any detainee.”12 Appellants’
Br. 23; see Rasul I, 512 F.3d at 666. The proper inquiry,
however, is not whether the Constitution prohibits torture but
“whether the rights the plaintiffs press under the Fifth and
Eighth Amendments were clearly established at the time of the
alleged violations.” Rasul I, 512 F.3d at 666 (emphasis in
original). As the Supreme Court made clear in Boumediene, it
had “never held that noncitizens detained by our Government in
territory over which another country maintains de jure
sovereignty have any rights under our Constitution.” 553 U.S.
at 770; see also Rasul II, 563 F.3d at 530 (“At the time of [the
plaintiffs’] detention, neither the Supreme Court nor this court
had ever held that aliens captured on foreign soil and detained
beyond sovereign U.S. territory had any constitutional
rights—under the Fifth Amendment, the Eighth Amendment, or
otherwise.”). As it was not clearly established in 2004 that the
Fifth and Eighth Amendments apply to aliens detained at
Guantanamo Bay—where the Supreme Court has since held the
Suspension Clause applies—it plainly was not clearly
established in 2004 that the Fifth and Eighth Amendments apply
to aliens held in Iraq and Afghanistan—where no court has held
any constitutional right applies. As we explained in Rasul II, the
Supreme Court in Boumediene “explicitly confined its
constitutional holding ‘only’ to the extraterritorial reach of the
Suspension Clause” and “disclaimed any intention to disturb
existing law governing the extraterritorial reach of any
constitutional provisions, other than the Suspension Clause.”
563 F.3d at 529 (quoting Boumediene, 553 U.S. at 795). As in



     12
        The plaintiffs also cite several “military laws, regulations, and
training materials” prohibiting torture which, they contend, “reinforce
the constitutional prohibition against torture and serve to put military
commanders and personnel on notice of the sorts of actions that the
Constitution prohibits.” Appellants’ Br. 24-25.
                                 15

Rasul II, therefore, the defendants here are protected from the
plaintiffs’ constitutional claims by qualified immunity.13
     The plaintiffs contend the Supreme Court in Boumediene
adopted a flexible approach that leaves open the possibility of
the extraterritorial application of constitutional provisions other
than the Suspension Clause and claim that our decision in Al
Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), accurately
interprets Boumediene. Because the three alien Bagram
detainees in Al Maqaleh sought habeas corpus relief, the
decision addresses only the applicability of the Suspension
Clause. We nonetheless noted that the Supreme Court’s
Boumediene decision “explored the more general question of
extension of constitutional rights and the concomitant
constitutional restrictions on governmental power exercised
extraterritorially and with respect to noncitizens.” Id. at 93. The
court discussed three factors the Supreme Court identified as
relevant in determining the reach of the Suspension Clause: “(1)
the citizenship and status of the detainee and the adequacy of the
process through which that status determination was made; (2)
the nature of the sites where apprehension and then detention
took place; and (3) the practical obstacles inherent in resolving
the prisoner’s entitlement to the writ.” Id. at 94 (quoting
Boumediene, 553 U.S. at 766). The first factor weighed in favor
of extending the habeas corpus right to the three because, like
the Boumediene detainees, they were aliens held by the
American military. Id. at 95-96. According to the court, the




    13
       Even the plaintiffs recognize this and ask us to “abandon [our]
holdings to the contrary.” Appellants’ Br. 23. “That argument is
misplaced because we are, of course, bound to follow circuit precedent
absent contrary authority from an en banc court 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 (2007).
                                  16

three received less due process than the Boumediene detainees.14
Id. The second and third factors, however, weighed against
them. Distinguishing Guantanamo Bay—where, according to
the Supreme Court, the United States has de facto sovereignty,
Boumediene, 553 U.S. at 755—the court concluded “the same
simply is not true with respect to Bagram.” Al Maqaleh, 605
F.3d at 97. The United States has not demonstrated an intent to
exercise sovereignty over Bagram “with permanence.” Id.
Moreover, “Bagram, indeed the entire nation of Afghanistan,
remains a theater of war.” Id. The same is true of Iraq. The
Supreme Court expressly stated in Boumediene that, if
Guantanamo Bay “were located in an active theater of war,
arguments that issuing the writ would be ‘impractical or
anomalous’ would have more weight.” 553 U.S. at 770. We
concluded “that under both Eisentrager and Boumediene, the
[habeas corpus] writ does not extend to the Bagram confinement
in an active theater of war in a territory under neither the de
facto nor de jure sovereignty of the United States and within the
territory of another de jure sovereign.” Al Maqaleh, 605 F.3d at
98. Thus, even under the plaintiffs’ view of Boumediene, we
have nonetheless held that the Suspension Clause does not apply
to Bagram detainees. They offer no reason—and we see none

    14
         The Al Maqaleh detainees’ status was reviewed by the
Unlawful Enemy Combatant Review Board (UECRB), not the
Combatant Status Review Tribunal (CSRT) that reviewed the
Boumediene detainees’ status. 605 F.3d at 96. According to the court,
“proceedings before the UECRB afford[ed] even less protection to the
rights of detainees in the determination of status than was the case
with the CSRT.” Id. The Al Maqaleh detainees had no representation
while the Boumediene detainees had “personal representative[s].” Al
Maqaleh v. Gates, 604 F. Supp. 2d 205, 227 (D.D.C. 2009), rev’d, 605
F.3d 84 (D.C. Cir. 2010). Additionally, the Al Maqaleh detainees
were not permitted to speak in their defense but could submit only a
written statement and were not informed of the evidence against them
so that they lacked a meaningful opportunity to rebut the evidence. Id.
                                  17

ourselves—why the plaintiffs’ Fifth and Eighth Amendment
claims would be any stronger than the Suspension Clause claims
of the Bagram detainees.
     The plaintiffs urge us to follow the now-optional Saucier
procedure and decide, first, whether they have “alleged a
deprivation of a constitutional right at all,” Pearson, 129 S. Ct.
at 816 (internal quotation marks omitted), although we may
ultimately conclude any such right was not clearly established
at the time of the defendants’ alleged misconduct.15 The Saucier
procedure, however, is not appropriate in most cases. Often “it
is plain that a constitutional right is not clearly established but
far from obvious whether in fact there is such a right.” Id. In
such a case, deciding the existence of the constitutional right vel
non is “an essentially academic exercise,” id., that “runs counter
to the older, wiser judicial counsel not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable,”
id. at 821 (ellipsis in original) (internal quotation marks and
citations omitted), and results in the “substantial expenditure of
scarce judicial resources on difficult questions that have no
effect on the outcome of the case,” id. at 818. The Saucier
approach can also preclude an affected party from obtaining
appellate review of a decision that could significantly affect its


     15
        We recognize that the Saucier approach is “often beneficial”
and helps “promote[] the development of constitutional precedent.”
Pearson, 129 S. Ct. at 818; see also Camreta v. Greene, 131 S. Ct.
2020, 2032 (2011). As the Supreme Court explained, in some cases
“there would be little if any conservation of judicial resources to be
had” by deciding only the “clearly established” prong. Pearson, 129
S. Ct. at 818. For instance, it sometimes can be “difficult to decide
whether a right is clearly established without deciding precisely what
the constitutional right happens to be.” Id. (quotation marks and
citation omitted). In other cases, the explanation that a right was not
clearly established “may make it apparent that [the allegations] do not
make out a constitutional violation at all.” Id.
                                  18

future actions. Id. at 820. If a court decides that the defendant
violated the plaintiff’s constitutional right but is entitled to
qualified immunity because the right was not clearly established
at the time, the “prevailing” defendant presumably would not be
able to appeal the adverse constitutional holding. Id. (citing
Kalka v. Hawk, 215 F.3d 90, 96 n.9 (D.C. Cir. 2000)
(“Normally, a party may not appeal from a favorable
judgment.”)); cf. Camreta v. Greene, 131 S. Ct. 2020, 2028-33
(2011) (official who prevails on qualified immunity in district
court may not be able to obtain appellate review,
notwithstanding availability of certiorari review to official who
prevails on qualified immunity on appeal). As in Rasul II, we
believe “[c]onsiderations of judicial restraint favor exercising
the Pearson option with regard to [the] plaintiffs’ Bivens
claims.” 563 F.3d at 530.
     In Rasul II we had an alternative basis—apart from
qualified immunity—on which to dismiss the plaintiffs’ Bivens
claims—that “federal courts cannot fashion a Bivens action
when ‘special factors’ counsel against doing so.” 563 F.3d at
532 n.5. We determined the “danger of obstructing U.S.
national security policy is one such factor” that counsels against
allowing a Bivens claim to proceed.16 Id. The same rationale
applies here.17 The district court correctly concluded that
allowing a Bivens action to be brought against American
military officials engaged in war would disrupt and hinder the
ability of our armed forces “to act decisively and without
hesitation in defense of our liberty and national interests.”



     16
        We concluded that this alternative rationale was “also
unaffected by the Supreme Court’s Boumediene decision.” 563 F.3d
at 532 n.5.
     17
        Again, the plaintiffs urge us to “abandon” our holding in Rasul
II on this point as well. Appellants’ Br. 35.
                                19

Detainees Litig., 479 F. Supp. 2d at 105. The Supreme Court
long ago recognized as much in Eisentrager:
    Such trials would hamper the war effort and bring aid
    and comfort to the enemy. They would diminish the
    prestige of our commanders, not only with enemies but
    with wavering neutrals. It would be difficult to devise
    more effective fettering of a field commander than to
    allow the very enemies he is ordered to reduce to
    submission to call him to account in his own civil
    courts and divert his efforts and attention from the
    military offensive abroad to the legal defensive at
    home. Nor is it unlikely that the result of such enemy
    litigiousness would be a conflict between judicial and
    military opinion highly comforting to enemies of the
    United States.
339 U.S. 763, 779 (1950). And in Sanchez-Espinoza v. Reagan,
770 F.2d 202, 209 (D.C. Cir. 1985), our court noted that “the
special needs of foreign affairs must stay our hand in the
creation of damage remedies against military and foreign policy
officials for allegedly unconstitutional treatment of foreign
subjects causing injury abroad.”           In Sanchez-Espinoza,
Nicaraguan citizens, none of whom resided in the United States,
sued, inter alia, the President, the CIA director, the then-current
as well as former secretaries of state and the then-secretary of
defense alleging they had “authorized, financed, trained,
directed and knowingly provided substantial assistance” to
Nicaraguan rebels who engaged in “summary execution,
murder, abduction, torture, rape, wounding, and the destruction
of private property and public facilities.” Id. at 205 (quoting
Am. Compl. ¶¶ 31, 81). We concluded that “the danger of
foreign citizens’ using the courts in [such situation] to obstruct
the foreign policy of our government is sufficiently acute that
we must leave to Congress the judgment whether a damage
remedy should exist.” Id. at 209. As in Rasul II, we see no
                                  20

basis for distinguishing this case from Sanchez-Espinoza.
Accordingly, even if the defendants were not shielded by
qualified immunity and the plaintiffs could claim the protections
of the Fifth and Eighth Amendments, we would decline to
sanction a Bivens cause of action because special factors counsel
against doing so.
                       B. The ATS Claims
     Rasul II also governs our resolution of the plaintiffs’ ATS
claims alleging violations of the law of nations. In addition to
their Bivens claims, the Rasul plaintiffs “brought three claims
for violations of the law of nations pursuant to the [ATS] based
on the defendants’ alleged infliction of ‘prolonged arbitrary
detention,’ ‘torture,’ and ‘cruel, inhuman or degrading
treatment.’ ”18 Rasul I, 512 F.3d at 654 (citations omitted). We
determined the defendants’ alleged tortious conduct—“the
detention and interrogation of suspected enemy
combatants”—was “incidental to [their] legitimate employment
duties” because it was “the type of conduct the defendants were
employed to engage in.” Id. at 658-59. Because the defendants
had acted within the scope of their employment, we held the
ATS claims “were properly restyled as claims against the United
States that are governed by the FTCA” and upheld their
dismissal for failure to exhaust administrative remedies.19 Id. at

     18
       Specifically, the Rasul plaintiffs alleged “they were beaten,
shackled in painful stress positions, threatened by dogs, subjected to
extreme temperatures and deprived of adequate sleep, food, sanitation,
medical care and communication.” Rasul I, 512 F.3d at 654.
     19
        In Rasul II, we stated that we could “see nothing in the
Supreme Court’s [Boumediene] decision that could possibly affect our
disposition of” the plaintiffs’ ATS claims alleging violations of the
law of nations and “therefore reinstate[d] our judgment” with respect
to those claims. 563 F.3d at 528-29. The portion of Rasul I that treats
the ATS claims, therefore, remains controlling law.
                                    21

660-61 (internal quotation marks and brackets omitted). The
plaintiffs here bring similar claims against similar (and, in the
case of defendant Rumsfeld, identical) defendants. And like the
Rasul defendants who, we held, were acting within the scope of
their employment, the defendants here—who engaged in the
same conduct—were acting within the scope of their
employment as well. See id. at 654-61. The plaintiffs argue the
Westfall Act does not cover “egregious torts that violate jus
cogens norms” because the Act grants immunity for a
“ ‘negligent or wrongful act or omission’ ” only. Appellants’
Br. 46 (quoting 28 U.S.C. § 2679(b)(1)). The plaintiffs argue
“wrongful” is ambiguous and should be interpreted in light of
the Act’s legislative history which, the plaintiffs contend,
reveals “wrongful” was not intended to encompass egregious
torts that violate jus cogens norms. We explicitly rejected this
argument in Rasul I, where, while acknowledging the plaintiffs
had “plainly alleged ‘seriously criminal’ conduct,” we explained
that “the allegations of serious criminality do not alter our
conclusion that the defendants’ conduct was incidental to
authorized conduct.” 512 F.3d at 659-60. Accordingly, the
district court correctly held that the Westfall Act applied and
correctly substituted the United States as the defendant under the
FTCA.20 The FTCA “required the plaintiffs to file an

     20
        The plaintiffs also challenge the district court’s holding that the
defendants acted within the scope of their employment. They contend
that, “[a]s a matter of law, torture can never fall within the scope of
employment of the U.S. Secretary of Defense and high-ranking U.S.
Army commanders.” Appellants’ Br. 56. They nonetheless recognize
the district court’s ruling is mandated by our precedent and “maintain
the issue here [only] to preserve it.” Id. They “respectfully submit
that this Court’s decisions . . . in Rasul II and Harbury [v. Hayden,
522 F.3d 413 (D.C. Cir. 2008),] are not well-founded and should be
reconsidered.” Id. at 57. We are of course bound by circuit precedent.
United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006) (per
curiam) (“[W]e are . . . bound to follow circuit precedent absent
                                 22

administrative claim with either the Department of Defense
(DoD) or the appropriate military department before bringing
suit.” Id. at 661 (citing 28 C.F.R. § 14.1). “[W]e view the
failure to exhaust administrative remedies as jurisdictional.” Id.
As in Rasul, the “record is devoid . . . of any suggestion” the
plaintiffs filed an administrative claim with DoD or a military
department. Id. The district court thus properly dismissed the
ATS claims under FRCP 12(b)(1) for lack of subject matter
jurisdiction.
     The plaintiffs raise one argument not addressed in Rasul I
or II. The Westfall Act does not immunize a federal
employee/official from a suit “brought for a violation of a
statute of the United States under which such action against an
individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B).
The plaintiffs claim the ATS, under which they brought their
claims for violations of the law of nations, is a United States
statute that permits a private cause of action against a federal
employee/official. Therefore, the plaintiffs contend, their claims
fall within an exception to the Westfall Act and they should be
permitted to proceed against the individual defendants, not the
United States.
     The district court in Rasul I rejected this argument,
explaining that the ATS21 “is strictly a jurisdictional statute” that
“does not confer rights nor does it impose obligations or duties
that, if violated, would trigger the Westfall Act’s statutory



contrary authority from an en banc court or the Supreme Court.”).
    21
       The district court called it the Alien Tort Claims Act (ATCA),
414 F. Supp. 2d at 37-38, another name for the ATS. See Estate of
Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d 1350, 1356 n.5
(11th Cir. 2010) (“The [ATS] is also known as the Alien Tort Claims
Act (ATCA), and the Alien Tort Act (ATA).” (internal quotation
marks omitted)).
                                  23

exception.”22 414 F. Supp. 2d 26, 37-38 (D.D.C. 2006). The
Supreme Court has also rejected a similar argument. In United
States v. Smith, 499 U.S. 160 (1991), a former Army sergeant
and his wife sued the Army doctor who delivered their baby in
Italy, alleging the doctor’s negligence caused brain damage to
the baby. The United States sought to substitute itself as the
defendant pursuant to the Gonzalez Act, 10 U.S.C. § 1089,
which “provide[d] that in suits against military medical
personnel for torts committed within the scope of their
employment, the Government is to be substituted as the
defendant and the suit is to proceed against the Government
under the FTCA.” Smith, 499 U.S. at 162-63. While the
plaintiffs’ appeal was pending, the Congress enacted the
Westfall Act. The United States then relied on the Westfall Act,
rather than the Gonzalez Act, to substitute itself as the defendant
and the Supreme Court accordingly considered the Westfall
Act’s applicability. At the time, two courts of appeals had held
that the Gonzalez Act protected “only military medical
personnel who commit torts within the United States and not
those committing torts abroad.” Id. at 171. The Smith plaintiffs
argued their claim was therefore not precluded by the Gonzalez
Act and that their claim fell within the statutory exception to the
Westfall Act because the Gonzalez Act “authorized” their claim.
The Supreme Court rejected the plaintiffs’ argument. It
explained that it “need not decide whether a tort claim brought
under state or foreign law could be deemed authorized by the
Gonzalez Act” because the plaintiffs’ contention “that a claim
for malpractice involves ‘a violation of’ the Gonzalez Act[]is
without merit. Nothing in the Gonzalez Act imposes any
obligations or duties of care upon military physicians.
Consequently, a physician allegedly committing malpractice


     22
       We did not reach the issue on appeal because the plaintiffs did
not appeal that part of the district court’s decision. See Rasul I, 512
F.3d at 661 n.11.
                                  24

under state or foreign law does not ‘violate’ the Gonzalez Act.”
Id. at 174.
     More importantly, the Supreme Court has clarified that “the
ATS is a jurisdictional statute creating no new causes of action.”
Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004); id. at 729
(“All Members of the Court agree that § 1350 is only
jurisdictional.”). Thus, as with the Gonzalez Act, nothing in the
ATS “imposes any obligations or duties of care upon” the
defendants. Smith, 499 U.S. at 174; accord Bancoult v.
McNamara, 370 F. Supp. 2d 1, 9 (D.D.C. 2004) (“The plain
language of [the ATS] . . . does not confer rights nor does it
impose obligations or duties that, if violated, would trigger the
[Westfall Act’s statutory violation] exception.”), aff’d on other
grounds, 445 F.3d 427 (D.C. Cir. 2006) (dismissing complaint
on political question ground), cert. denied, 549 U.S. 1166
(2007); Schneider v. Kissinger, 310 F. Supp. 2d 251, 266-67
(D.D.C. 2004) (dismissing complaint on political question
ground but holding, alternatively, that ATS “cannot be violated
for purposes of [Westfall Act’s statutory violation exception]”),
aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005) (affirming
dismissal as political question), cert. denied, 547 U.S. 1069
(2006). The plaintiffs ask us to ignore the Supreme Court’s
Sosa decision.23 We can no more ignore Supreme Court
precedent than could the district court. Accordingly, we hold
that the plaintiffs’ claim under the ATS alleges a violation of the
law of nations, not of the ATS, and therefore does not violate a




     23
         The plaintiffs claim the statutory violation exception language
of the Westfall Act is ambiguous and we must therefore look to
legislative history to determine its meaning. Because Sosa issued after
the ATS was enacted, the plaintiffs contend, it “does not shed light on
what Congress meant to include in the statutory violation exception.”
Appellants’ Br. 53.
                                   25

statute of the United States within the meaning of section
2679(b)(2)(B).24



     24
         Although the Supreme Court in Sosa stated that “the ATS is a
jurisdictional statute creating no new causes of action,” it nonetheless
concluded “the statute was intended to have practical effect the
moment it became law” and explained that the statute’s jurisdictional
grant “is best read as having been enacted on the understanding that
the common law would provide a cause of action for the modest
number of international law violations with a potential for personal
liability at the time [the ATS was enacted in 1789].” 542 U.S. at 724.
The Court recognized only three violations—violation of safe
conducts, infringement of the rights of ambassadors and piracy—but
assumed that nothing “categorically precluded federal courts from
recognizing a claim under the law of nations as an element of common
law.” Id. at 724-25.
      At the same time the Court held a new cause of action could be
recognized under the ATS, however, it cautioned courts against doing
so, noting that a “series of reasons argue for judicial caution when
considering the kinds of claims that might implement the jurisdiction
conferred by the [ATS].” Id. at 725. The Court noted that its “general
practice has been to look for legislative guidance before exercising
innovative authority over substantive law” and stated it “would be
remarkable to take a more aggressive role in exercising a jurisdiction
that remained largely in shadow for much of the prior two centuries.”
Id. at 726. The Court emphasized “that a decision to create a private
right of action is one better left to legislative judgment in the great
majority of cases.” Id. at 727 (citing Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 68 (2001); Alexander v. Sandoval, 532 U.S. 275, 286-87
(2001)). For that reason, the Court found itself “reluctant to infer . . .
a private cause of action where the statute does not supply one
expressly.” Id. Additionally, “the potential implications for the
foreign relations of the United States of recognizing [a new cause of
action under the ATS] should make courts particularly wary of
impinging on the discretion of the Legislative and Executive Branches
in managing foreign affairs.” Id.
                                 26

      Notwithstanding Sosa’s plain statement that “the ATS is a
jurisdictional statute,” 542 U.S. at 724, the dissent believes the
ATS incorporates the law of nations and that a violation of the
law of nations thus constitutes a violation of the ATS sufficient
to satisfy the Westfall Act’s statutory violation exception. See
Dissenting Op. at 17-25. The respondent in Sosa advanced a
similar argument—“that the ATS was intended not simply as a
jurisdictional grant, but as authority for the creation of a new
cause of action for torts in violation of international law.” 542
U.S. at 713. The Supreme Court rejected “that reading [of the
ATS as] implausible,” explaining that, “[a]s enacted in 1789, the
ATS gave the district courts ‘cognizance’ of certain causes of
action, and the term bespoke a grant of jurisdiction, not power
to mold substantive law.” Id. Moreover, the Court noted, the
positioning of the ATS “in § 9 of the Judiciary Act, a statute
otherwise exclusively concerned with federal-court jurisdiction,
is itself support for its strictly jurisdictional nature.”25 Id. The
Court therefore found it “unsurprising . . . that an authority on
the historical origins of the ATS has written that ‘section 1350
clearly does not create a statutory cause of action,’and that the
contrary suggestion is ‘simply frivolous.’ ” Id. (quoting William
R. Casto, The Federal Courts’ Protective Jurisdiction over Torts
Committed in Violation of the Law of Nations, 18 Conn. L. Rev.
467, 479, 480 (1986)); see also Casto, supra, at 479 (“The
[ATS] is purely jurisdictional, and the first Congress
undoubtedly understood this to be the case.”).



    25
       In this respect, the ATS is easily distinguishable from section
301(a) of the Labor Management Relations Act of 1947 (LMRA), 29
U.S.C. § 185(a). See Dissenting Op. at 24. Section 301(a) is part of
an extensive statutory enactment and, although it speaks only to
federal jurisdiction, other provisions of the LMRA establish
substantive legal duties and rights. See, e.g., 29 U.S.C. §§ 186-87.
The ATS, by contrast, is a stand-alone grant of jurisdiction only.
                                27

     The dissent’s citations to Sosa—and to Filartiga v. Pena-
Irala, 630 F.2d 876 (2d Cir. 1980)—confirm that the ATS is a
jurisdictional statute only and that any claim brought under the
ATS alleges a violation of the law of nations and the common
law, not of the ATS itself. See Dissenting Op. at 3-4, 12, 18-19.
     The dissent contends that Supreme Court precedent
establishing “that the domestic law of the United States
recognizes the law of nations,” Sosa, 542 U.S. at 729-30 (citing
cases), “indicates that section 1350 itself effectively
incorporates the law of nations,” Dissenting Op. at 19. The Sosa
Court’s statement “that the domestic law of the United States
recognizes the law of nations,” however, is best understood to
refer to the common law of the United States, not its statutory
law. The most recent precedent the Court cited to support its
statement confirms this understanding. See Sosa, 542 U.S. at
730 (“ ‘[I]nternational disputes implicating . . . our relations
with foreign nations’ are one of the ‘narrow areas’ in which
‘federal common law’ continues to exist.” (ellipsis in original)
(emphasis added) (quoting Tex. Indus., Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 641 (1981))); see also Dissenting
Op. at 19 (quoting William A. Fletcher, International Human
Rights in American Courts, 93 Va. L. Rev. 653, 665 (2007)).
     Sosa unequivocally holds that the ATS is a jurisdictional
statute only. Sosa, 542 U.S. at 729 (“All Members of the Court
agree that § 1350 is only jurisdictional.”). A claim brought
under the ATS therefore does not allege “a violation of a statute
of the United States” satisfying the Westfall Act exception. 28
U.S.C. § 2679(b)(2)(B).
            C. The Declaratory Judgment Claim
     The plaintiffs also seek a declaration that the acts alleged in
their amended complaint are unlawful and violate the U.S.
Constitution, military rules and guidelines and the law of
nations. Am. Compl. ¶ 264(a). As discussed supra, however,
                                28

the plaintiffs have not alleged a cognizable cause of action and
therefore have no basis upon which to seek declaratory relief.
Nor does the Declaratory Judgment Act (DJA), 28 U.S.C.
§ 2201, provide a cause of action. It is a “well-established rule
that the Declaratory Judgment Act ‘is not an independent source
of federal jurisdiction.’ Rather, ‘the availability of [declaratory]
relief presupposes the existence of a judicially remediable
right.’ ” C&E Servs., Inc. of Washington v. D.C. Water & Sewer
Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (quoting Schilling v.
Rogers, 363 U.S. 666, 677 (1960)); see also Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (“The
operation of the Declaratory Judgment Act is procedural only.
Congress enlarged the range of remedies available in the federal
courts but did not extend their jurisdiction.” (internal quotation
marks and citation omitted)).
    For the foregoing reasons, we affirm the district court’s
judgment of dismissal.
                                                       So ordered.
     EDWARDS, Senior Circuit Judge, dissenting: The plaintiff-
appellants in this case allege that they were subjected to acts of
torture and abuse while being detained at U.S. military facilities
in Afghanistan and Iraq. Each appellant was eventually released
without being charged with a crime. Appellants filed suit,
alleging civil claims under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
and the Alien Tort Statute (“section 1350” or “ATS”), 28 U.S.C.
§ 1350, as well as claims for declaratory relief. Following a
motions hearing, the District Court granted the appellees’
separate motions to dismiss. See In re Iraq and Afghanistan
Detainees Litig. (“Detainees Litig.”), 479 F. Supp. 2d 85
(D.D.C. 2007). Although I do not disagree with the court’s
judgment dismissing appellants’ Bivens claims and their claims
for declaratory relief, I dissent from the court’s disposition of
appellants’ claims under section 1350.
     Section 1350 says that “[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations.” In my view,
the Supreme Court’s decision in Sosa v. Alvarez-Machain, 542
U.S. 692 (2004), confirms that appellants may pursue a cause of
action under section 1350 for deliberate torture perpetrated
under color of official authority, and the Westfall Act does not
bar these claims. It is ironic that, under the majority’s approach,
United States officials who torture a foreign national in a foreign
country are not subject to suit in an action brought under section
1350, whereas foreign officials who commit official torture in a
foreign country may be sued under section 1350.
                             ****
     The Government’s interpretation of Sosa, which is endorsed
by the majority, is strikingly incomplete. The Government first
cites a passage from Sosa in which the Court says that the ATS
“is a jurisdictional statute creating no new causes of action.”
Appellees’ Br. at 47 (quoting Sosa, 542 U.S. at 724). From this,
the Government concludes that, “[u]nder Sosa, it is indisputable
                               2

the ATS is not a federal statute that is capable of being
violated.” Id. at 48.
     The Court’s decision in Sosa is much more nuanced than
the Government would have it. And Sosa surely does not
foreclose actions under the ATS seeking redress for official
torture. Rather, contrary to the Government’s claims, Sosa
makes the following critical points:
    All Members of the Court agree that § 1350 is only
    jurisdictional. We also agree, or at least JUSTICE SCALIA [in
    his concurrence] does not dispute, that the jurisdiction was
    originally understood to be available to enforce a small
    number of international norms that a federal court could
    properly recognize as within the common law enforceable
    without further statutory authority.
    ...
         Whereas JUSTICE SCALIA sees . . . developments as
    sufficient to close the door to further independent judicial
    recognition of actionable international norms, other
    considerations persuade us that the judicial power should be
    exercised on the understanding that the door is still ajar
    subject to vigilant doorkeeping, and thus open to a narrow
    class of international norms today. Erie [Railroad Co. v.
    Tompkins, 304 U.S. 64 (1938),] did not in terms bar any
    judicial recognition of new substantive rules, no matter
    what the circumstances, and post-Erie understanding has
    identified limited enclaves in which federal courts may
    derive some substantive law in a common law way.
    ...
    We think it would be unreasonable to assume that the First
    Congress would have expected federal courts to lose all
    capacity to recognize enforceable international norms
    simply because the common law might lose some
                               3

    metaphysical cachet on the road to modern realism. Later
    Congresses seem to have shared our view. The position we
    take today has been assumed by some federal courts for 24
    years, ever since the Second Circuit decided Filartiga v.
    Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and for practical
    purposes the point of today’s disagreement has been
    focused since the exchange between Judge Edwards and
    Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d
    774 (D.C. Cir. 1984). Congress, however, has not only
    expressed no disagreement with our view of the proper
    exercise of the judicial power, but has responded to its most
    notable instance by enacting legislation supplementing the
    judicial determination in some detail.
542 U.S. at 729-31 (citation omitted) (emphasis added). As this
court recently noted in Saleh v. Titan Corp., 580 F.3d 1 (D.C.
Cir. 2009), it is clear that Sosa “opened the door a crack to the
possible recognition of new causes of action under international
law (such as, perhaps, torture) if they were firmly grounded on
an international consensus.” Id. at 14.
    It is particularly noteworthy that the Supreme Court’s
opinion in Sosa says: “The position we take today has been
assumed by some federal courts for 24 years, ever since the
Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876
(2d Cir. 1980).” 542 U.S. at 731. Filartiga held that
    deliberate torture perpetrated under color of official
    authority violates universally accepted norms of the
    international law of human rights, regardless of the
    nationality of the parties. Thus, whenever an alleged
    torturer is found and served with process by an alien within
    our borders, § 1350 provides federal jurisdiction.
630 F.2d at 878. The Filartiga court construed section 1350
“not as granting new rights to aliens, but simply as opening the
federal courts for adjudication of the rights already recognized
                                4

by international law.” Id. at 887; see also Sosa, 542 U.S. at 730
(stating that “the Court is bound by the law of nations which is
a part of the law of the land”) (quoting The Nereide, 13 U.S. (9
Cranch) 388, 423 (1815) (Marshall, C.J.)); Tel-Oren v. Libyan
Arab Republic, 726 F.2d 774, 780 (D.C. Cir. 1984) (Edwards, J.,
concurring) (“[S]ection 1350 itself provides a right to sue for
alleged violations of the law of nations.” (footnote omitted)).
     Filartiga is firm in its holding that “there are few, if any,
issues in international law today on which opinion seems to be
so united as the limitations on a state’s power to torture persons
held in its custody.” Id. at 881. This court recently echoed this
view in Saleh, noting that “torture committed by a state is
recognized as a violation of a settled international norm.” 580
F.3d at 15. The Government does not suggest otherwise. So it
is clear beyond debate that official torture violates the law of
nations.
     The fact that the plaintiffs in this case have alleged that
United States officials committed torture does not counsel
against a cause of action under the ATS. The statute does not
exclude claims against state actors. And there is no evidence
that recent congressional statutes addressing torture and detainee
treatment, respectively, intended to preempt suits under section
1350. In fact, there is evidence to the contrary.
     Only one question remains: Does the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (“Westfall
Act”), Pub. L. No. 100-694, 102 Stat. 4563, bar appellants’ ATS
claims from going forward? After careful consideration of Sosa
and the case law construing the Westfall Act, I am convinced
that the Westfall Act does not bar appellants’ claims. An action
that is cognizable under section 1350 falls within the Westfall
Act’s exception for “violation[s] of a statute of the United States
under which such action[s] against an individual [are] otherwise
authorized,” 28 U.S.C. § 2679(b)(2)(B). The Government
argues that section 1350 cannot fall within this exception
                                5

because the ATS is merely a jurisdictional statute. Appellees’
Br. at 47. In my view, Sosa requires the opposite conclusion:
Appellants’ claims arising under section 1350 must fall within
the statutory exception to the Westfall Act, because the ATS is
a federal statute that incorporates substantive international
norms and thereby directly authorizes recovery for deliberate
torture perpetrated under color of official authority.
     The Government ignores the fact that section 1350, unlike
the congressional grant of federal question jurisdiction, “was
enacted on the congressional understanding that courts would
exercise jurisdiction by entertaining some common law claims
derived from the law of nations.” Sosa, 542 U.S. at 731 n.19.
“Unlike section 1331, which requires that an action ‘arise under’
the laws of the United States, section 1350 does not require that
the action ‘arise under’ the law of nations, but only mandates a
‘violation of the law of nations’ in order to create a cause of
action.” Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring).
Section 1350 incorporates the law of nations – including the
prohibition against deliberate torture perpetrated under color of
official authority – that can be “violated” within the meaning of
the section 2679(b)(2)(B) exception to the Westfall Act. I
therefore conclude that, on the record before us, the District
Court has jurisdiction over appellants’ complaint alleging
official torture and the appellants have a viable cause of action.
Consequently, the District Court erred when it dismissed
appellants’ claims arising under section 1350.
                      I.   BACKGROUND
A. The United States Has Consistently and Repeatedly
   Condemned the Use of Torture
     “Torture has long been illegal” in our nation. 151 CONG.
REC. 30,756 (2005) (statement of Sen. Graham). Domestically,
torture, along with other punishments of “unnecessary cruelty,”
has been proscribed as a violation of the Eighth Amendment
                               6

since the nineteenth century. Estelle v. Gamble, 429 U.S. 97,
102 (1976) (citing Wilkerson v. Utah, 99 U.S. 130, 136 (1879)).
Congress has also prohibited torture that occurs abroad, making
such conduct a federal crime punishable by fines and up to 20
years of imprisonment, and even life imprisonment or death
should the torture result in a fatality. 18 U.S.C. § 2340A.
Congress further created a cause of action against any individual
who commits torture “under actual or apparent authority, or
color of law, of any foreign nation,” regardless of the victim’s
nationality or the geographic location of the alleged acts.
Torture Victim Protection Act (“TVPA”), Pub. L. No. 102-256,
§ 2(a), 106 Stat. 73, 73 (1992) (codified in 28 U.S.C. § 1350
(note)).
     Within the context of a military conflict, Congress has
declared, in both the Detainee Treatment Act of 2005 (“DTA”)
and the Military Commissions Act of 2006 (“2006 MCA”), that
“[n]o individual in the custody or under the physical control of
the United States Government, regardless of nationality or
physical location, shall be subject to cruel, inhuman, or
degrading treatment or punishment,” DTA, Pub. L. No. 109-148,
div. A, title X, § 1003(a), 119 Stat. 2680, 2739 (codified at 42
U.S.C. § 2000dd(a)); 2006 MCA, Pub. L. No. 109-366,
§ 6(c)(1), 120 Stat. 2600, 2635 (codified at 42 U.S.C. § 2000dd-
0(1)), and has further prohibited any “treatment or technique of
interrogation not authorized by and listed in the United States
Army Field Manual on Intelligence Interrogation.” DTA, Pub.
L. No. 109-148, div. A, title X, § 1002(a), 119 Stat. at 2739
(codified at 10 U.S.C. § 801 (note)). See also 18 U.S.C. § 2441
(making war crimes committed by or against a member of the
U.S. Armed Forces or a U.S. national punishable by fine,
imprisonment, and/or death, regardless of where the crime
occurred).
    The Executive Branch has been similarly resolute in its
prohibition of torture. The United States signed the Convention
                               7

Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“Convention Against Torture”) in
1988. In 2000, the U.S. Department of State, with input from
the Department of Justice and other federal departments and
agencies, submitted its initial compliance report to the United
Nations Committee Against Torture, which stated:
    Torture is prohibited by law throughout the United States.
    It is categorically denounced as a matter of policy and as a
    tool of state authority. Every act constituting torture under
    the [United Nations] Convention [Against Torture]
    constitutes a criminal offence under the law of the United
    States. No official of the Government, federal, state or
    local, civilian or military, is authorized to commit or to
    instruct anyone else to commit torture. Nor may any
    official condone or tolerate torture in any form. No
    exceptional circumstances may be invoked as a justification
    of torture. United States law contains no provision
    permitting otherwise prohibited acts of torture or other
    cruel, inhuman or degrading treatment or punishment to be
    employed on grounds of exigent circumstances (for
    example, during a “state of public emergency”) or on orders
    from a superior officer or public authority, and the
    protective mechanisms of an independent judiciary are not
    subject to suspension. The United States is committed to
    the full and effective implementation of its obligations
    under the Convention throughout its territory.
Initial Report of the United States of America to the United
Nations Committee Against Torture ¶ 6, U.N. DOC.
CAT/C/28/Add.5 (Feb. 9, 2000).
   Specifically with regard to military detainees, President
George W. Bush, in a statement issued in 2004, affirmed that
    America stands against and will not tolerate torture. . . .
    American personnel are required to comply with all U.S.
                                8

    laws, including the United States Constitution, Federal
    statutes, including statutes prohibiting torture, and our
    treaty obligations with respect to the treatment of all
    detainees. . . . Torture is wrong no matter where it occurs,
    and the United States will continue to lead the fight to
    eliminate it everywhere.
Statement on United Nations International Day in Support of
Victims of Torture, 40 WEEKLY COMP. PRES. DOC. 1167, 1167-
68 (June 26, 2004). In 2009, President Barack Obama, through
an executive order, instructed that “[detainees] shall in all
circumstances be treated humanely and shall not be subjected to
violence to life and person (including murder of all kinds,
mutilation, cruel treatment, and torture), nor to outrages upon
personal dignity (including humiliating and degrading
treatment).” Exec. Order No. 13,491, 3 C.F.R. 199, 200 (2009).
See also id. at 200-01 (“Effective immediately, an individual in
the custody or under the effective control of an officer,
employee, or other agent of the United States Government, or
detained within a facility owned, operated, or controlled by a
department or agency of the United States, in any armed
conflict, shall not be subjected to any interrogation technique or
approach, or any treatment related to interrogation, that is not
authorized by and listed in Army Field Manual 2-22.3.”).
B. Official Torture Violates the Law of Nations
    The United States’ condemnation of official torture is
simply a reflection of a firmly established international norm:
Torture perpetrated under color of official authority
unequivocally violates the law of nations. Every circuit that has
addressed the issue has concluded that official torture violates
customary international law. See, e.g., Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010); id. at 155
(Leval, J., concurring in the judgment); Aldana v. Del Monte
Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-53 (11th Cir.
2005) (per curiam); Kadic v. Karadžić, 70 F.3d 232, 243-44 (2d
                                9

Cir. 1995); Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th
Cir. 1994); Tel-Oren, 726 F.2d at 788 (Edwards, J., concurring);
id. at 819-20 (Bork, J., concurring). Indeed, the Supreme Court
in Sosa favorably cited the Second Circuit’s statement in
Filartiga that “the torturer has become . . . an enemy of all
mankind.” 542 U.S. at 732 (quoting Filartiga, 630 F.2d at 890);
see also id. at 762 (Breyer, J., concurring) (“Today international
law will sometimes similarly reflect not only substantive
agreement as to certain universally condemned behavior but also
procedural agreement that universal jurisdiction exists to
prosecute a subset of that behavior. That subset includes torture,
genocide, crimes against humanity, and war crimes.” (citation
omitted)).
     International agreements signed by the United States
support the conclusion that torture is a violation of customary
international law. Article 2 of the Convention Against Torture
provides that “[e]ach State Party shall take effective legislative,
administrative, judicial or other measures to prevent such acts of
torture in any territory under its jurisdiction.” Art. II, para. 1,
signed Apr. 18, 1988, S. TREATY DOC. NO. 100-20, 1465
U.N.T.S. 85; see also S. EXEC. REP. NO. 101-30, at 13 (1990)
(noting that definition of torture in the Convention Against
Torture “correspond[s] to the common understanding of torture
as an extreme practice which is universally condemned”). In
addition, the Geneva Convention of 1949, art. 3 (“Common
Article 3”), prohibits torture “at any time and in any place” in an
“armed conflict not of an international character.” See Hamdan
v. Rumsfeld, 548 U.S. 557, 630 (2006) (explaining that the
phrase “conflict not of an international character” was used in
contradistinction to Geneva Convention Common Article 2’s
application to conflicts between nations, such that Common
Article 3 applies to the United States’ conflict with al Qaeda).
Ever since the Vietnam War – the first war in which the United
States had to consider the Geneva Convention’s application to
prisoners in an insurgency environment – United States military
                                10

policy has been to apply Common Article 3 to all detainees
upon capture. JAMES F. GEBHARDT, THE ROAD TO ABU GHRAIB:
US ARMY DETAINEE DOCTRINE AND EXPERIENCE 120 (2005);
see also William H. Taft, IV, The Law of Armed Conflict After
9/11: Some Salient Features, 28 YALE J. INT’L L. 319, 321
(2003) (“Terrorists forfeit any claim to POW status under the
laws of armed conflict, but they do not forfeit their right to
humane treatment – a right that belongs to all humankind, in war
and in peace.”).
     In sum, there is universal agreement “in the modern usage
and practice of nations,” Filartiga, 630 F.2d at 883, that official
torture violates the law of nations. Any court addressing torture
does not write on a clean slate.
                        II.   ANALYSIS
A. Appellants Have a Cause of Action Under Section 1350
   To Seek Redress for Official Torture
     The Alien Tort Statute, 28 U.S.C. § 1350, reads as follows:
“The district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.” The statute was
passed by Congress as part of the Judiciary Act of 1789, ch. 20,
§ 9, 1 Stat. 73, 77, but it was not much cited before the Second
Circuit’s 1980 decision in Filartiga. See 630 F.2d 876 (holding
that a cause of action for official torture is cognizable under
section 1350). Filartiga led to the well-chronicled debate in
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.
1984), between Judge Bork and me about the purpose and scope
of section 1350.
     In Tel-Oren, I argued that section 1350 provided both
federal jurisdiction and “a right to sue for alleged violations of
the law of nations,” i.e., customary international law. Id. at 780.
I went on to emphasize
                                 11

    the extremely narrow scope of section 1350 jurisdiction
    under the Filartiga formulation.              Judge Kaufman
    characterized the torturer in Filartiga as follows: “Indeed,
    for purposes of civil liability, the torturer has become – like
    the pirate and slave trader before him – hostis humani
    generis, an enemy of all mankind.” Filartiga, 630 F.2d at
    890. The reference to piracy and slave-trading is not
    fortuitous. Historically these offenses held a special place
    in the law of nations: their perpetrators, dubbed enemies of
    all mankind, were susceptible to prosecution by any nation
    capturing them.
Id. at 781.
      Judge Bork viewed section 1350 differently. He argued that
“it is essential that there be an explicit grant of a cause of action
before a private plaintiff be allowed to enforce principles of
international law in a federal tribunal.” Id. at 801 (Bork, J.,
concurring); see also id. (criticizing the Filartiga court’s
assumed cause of action under section 1350 as “fundamentally
wrong and certain to produce pernicious results”). Judge Bork
also tentatively indicated that only offenses akin to the principal
offenses against the law of nations cited by Blackstone –
violation of safe conducts, infringement of the rights of
ambassadors, and piracy – would be actionable under the statute.
Id. at 813-16.
     Both Judge Bork and I agreed that the function and scope of
section 1350 needed clarification from the Supreme Court. Id.
at 775 (Edwards, J., concurring) (“This case deals with an area
of the law that cries out for clarification by the Supreme
Court.”); id. at 823 (Bork, J., concurring) (“Since section 1350
appears to be generating an increasing amount of litigation, it is
to be hoped that clarification will not be long delayed.”). The
Supreme Court obliged in Sosa.
                               12

     The issue before the Supreme Court in Sosa was whether
respondent Alvarez, a Mexican citizen, could bring a claim
against petitioner Sosa, a Mexican citizen hired by the Drug
Enforcement Administration, for an alleged violation of the law
of nations arising from his arbitrary detention. The Court first
noted that “[section 1350] was intended as jurisdictional,” Sosa,
542 U.S. at 714, and that it “creat[ed] no new causes of action,”
id. at 724. However, the Court did not stop there. Rather, it
held that
    [t]he jurisdictional grant is best read as having been enacted
    on the understanding that the common law would provide
    a cause of action for the modest number of international law
    violations with a potential for personal liability at the
    time. . . . We assume, too, that no development in the two
    centuries from the enactment of § 1350 to the birth of the
    modern line of cases beginning with Filartiga v. Pena-Irala
    has categorically precluded federal courts from recognizing
    a claim under the law of nations as an element of common
    law; Congress has not in any relevant way amended § 1350
    or limited civil common law power by another statute.
    Still, there are good reasons for a restrained conception of
    the discretion a federal court should exercise in considering
    a new cause of action of this kind. Accordingly, we think
    courts should require any claim based on the present-day
    law of nations to rest on a norm of international character
    accepted by the civilized world and defined with a
    specificity comparable to the features of the 18th-century
    paradigms we have recognized.
Id. at 724-25 (citation omitted). The Court thus plainly rejected
Judge Bork’s suggestion that only violations of the law of
nations extant as of 1789 could be brought pursuant to the ATS.
See id. at 729 (rejecting Justice Scalia’s argument that federal
courts should be precluded from “recognizing any further
international norms as judicially enforceable today”).
                                13

     Ultimately, the Court in Sosa rejected the respondent’s
complaint on the ground that arbitrary detention did not violate
a “norm of customary international law so well defined as to
support the creation of a federal remedy.” Id. at 738. However,
the Court surely did not foreclose a cause of action under section
1350 based on allegations of official torture. Quite the contrary.
Sosa “opened the door” to causes of action – such as official
torture – that are “firmly grounded on an international
consensus.” Saleh, 580 F.3d at 14.
B. Torture Committed by U.S. Officials Is Actionable
   Under the ATS
     In this case, appellants allege that they were detained in
U.S. military custody in Afghanistan and Iraq and subjected to
“torture and other cruel, inhuman or degrading treatment or
punishment” as a result of “the orders and derelictions of
Defendant [Donald] Rumsfeld and high-level commanders.”
Consolidated Am. Compl. for Declaratory Relief and Damages
¶¶ 1, 8 (Jan. 5, 2006), reprinted in Appendix 25, 27. The
definition of torture is a matter of some controversy, see, e.g.,
Judith Resnik, Detention, The War on Terror, and the Federal
Courts, 110 COLUM. L. REV. 579, 608-16 (2010), to be decided
by the District Court in the first instance. Assuming, however,
that the offenses articulated in appellants’ complaint constituted
torture – which the Government does not dispute in its brief – I
believe that appellants’ claims are actionable under section
1350.
     Having established that the ATS grants a cause of action for
clear and definite violations of the law of nations, the next
question is whether an alien may sue a state actor under section
1350 to seek redress for torture. I can find nothing in the text or
history of section 1350 to warrant excluding state actors from its
coverage.
                                 14

     The plain text of section 1350 – “[t]he district courts shall
have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of
the United States” – does not exclude lawsuits against state
actors. There continues to be much debate about the origin and
original purpose of section 1350. See, e.g., Thomas H. Lee, The
Safe-Conduct Theory of the Alien Tort Statute, 106 COLUM. L.
REV. 830 (2006); William S. Dodge, The Historical Origins of
the Alien Tort Statute: A Response to the “Originalists,” 19
HASTINGS INT’L & COMP. L. REV. 221 (1996); William R. Casto,
The Federal Courts’ Protective Jurisdiction over Torts
Committed in Violation of the Law of Nations, 18 CONN. L. REV.
467 (1986). However, I can find no compelling evidence in
these or any other articles, the words of the statute itself,
legislative materials, or the applicable case law to suggest that,
in enacting section 1350, Congress made a “legislative
judgment,” Sosa, 542 U.S. at 727, to preclude suits against U.S.
officials brought under section 1350. The same holds true for
Congress’ more recent enactments of the TVPA, the DTA, and
the 2006 MCA. In fact, as noted in Part I, supra, both the
Legislative and Executive Branches have long condemned
torture perpetrated under color of official authority. Not only
has torture been condemned, “[t]orture has long been illegal” in
our nation. 151 CONG. REC. 30,756 (2005) (statement of Sen.
Graham).
     Although the Supreme Court has held that “special factors”
counsel against a remedy for a constitutional violation under
Bivens whenever the injury arises out of activity “incident to
[military] service,” United States v. Stanley, 483 U.S. 669, 681
(1987) (internal quotation marks omitted); see also Chappell v.
Wallace, 462 U.S. 296 (1983) (denying Bivens action to military
personnel suing superior officers for injuries sustained in course
of military service), this reasoning does not translate to actions
brought pursuant to section 1350. This is so because, when
section 1350 was enacted, Congress expressly gave the federal
                                15

courts jurisdiction over “[torts] committed in violation of the
law of nations.” 28 U.S.C. § 1350. See Sosa, 542 U.S. at 724
(noting that section 1350 “is best read as having been enacted on
the understanding that the common law would provide a cause
of action for the modest number of international law violations
with a potential for personal liability at the time”). By contrast,
constitutional claims under Bivens are not brought pursuant to
any statute; the Supreme Court in Bivens “fashion[ed] a new,
judicially crafted cause of action,” Correctional Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001), without relying on a
congressional imprimatur akin to section 1350.
     This court’s recent holding in Saleh that a private
government contractor could not be liable for torture under
section 1350 also does not control the disposition of this case.
Unlike the appellants in the current case, who seek relief against
state actors both in their individual and official capacities, the
plaintiffs in Saleh were “unwilling to assert that the contractors
[were] state actors.” 580 F.3d at 15. Saleh’s holding – that,
“[a]lthough torture committed by a state is recognized as a
violation of a settled international norm, that cannot be said of
private actors,” id. – therefore has no bearing on the availability
of a cause of action under section 1350 based on allegations of
deliberate torture perpetrated under color of official authority.
     The Saleh decision also points out that, although “Congress
has frequently legislated on [the subjects of torture and war
crimes] in such statutes as the TVPA, the Military Commissions
Act, 10 U.S.C. § 948a et seq., the federal torture statute, 18
U.S.C. 2340-2340A, the War Crimes Act, 18 U.S.C. § 2441, and
the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.,”
it has never created a cause of action for victims of torture
committed by private contractors. 580 F.3d at 16. But again,
these facts are of little moment here because this case involves
state actors, not private contractors, and all of the statutes cited
in Saleh were passed long after the Second Circuit’s landmark
                               16

decision in Filartiga recognized a cause of action for official
torture under section 1350. Furthermore, neither the text of the
aforementioned statutes nor the coinciding legislative histories
indicate any intent by Congress to limit or preempt Filartiga’s
interpretation of section 1350. In fact, there are congressional
statements to the contrary. See S. REP. NO. 102-249, at 4 (1991)
(noting that “[s]ection 1350 has other important uses and should
not be replaced” by TVPA); H.R. REP. NO. 102-367, at 3 (1991),
reprinted in 1992 U.S.C.C.A.N. 86 (same); 151 CONG. REC.
30,757 (2005) (statement of Sen. McCain) (noting that torture-
related provisions of the Detainee Treatment Act, which were
re-passed as part of the 2006 MCA, “do not eliminate or
diminish any private right of action otherwise available”).
     Finally, although this court in Sanchez-Espinoza v. Reagan,
770 F.2d 202, 206-07 (D.C. Cir. 1985), appeared to hold that no
suits can be brought under section 1350 against U.S. officials in
their personal capacities, Congress superseded this holding when
it passed the Westfall Act. Sanchez-Espinoza is inapposite
because the court dismissed the plaintiffs’ claims in that case on
the ground of common law immunity. We know, however, that
Congress may override a judicial decision resting on a common
law principle. See City of Milwaukee v. Illinois, 451 U.S. 304,
315 (1981) (“[T]he question [is] whether the legislative scheme
spoke directly to a question . . . not whether Congress had
affirmatively proscribed the use of federal common law.”
(quotation omitted)); see also id. at 317 (“[W]e start with the
assumption that it is for Congress, not federal courts, to
articulate the appropriate standards to be applied as a matter of
federal law.” (footnote and internal quotation marks omitted)).
Congress did just that when it passed the Westfall Act.
     The Westfall Act “limits the relief available to persons
injured by Government employees acting within the scope of
their employment.” United States v. Smith, 499 U.S. 160, 161
(1991). However, what is significant here is that the Westfall
                               17

Act excepts from its grant of immunity all civil actions “brought
for a violation of the Constitution of the United States” or
“brought for a violation of a statute of the United States under
which such action against an individual is otherwise
authorized.” 28 U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).
     In my view, Congress’ decision to overrule Westfall v.
Erwin, 484 U.S. 292 (1988), and to codify the official immunity
doctrine, including the section 2679(b)(2)(A) and (b)(2)(B)
exceptions – which are explicit waivers of immunity – clearly
preempted any preexisting common law applications of
immunity with respect to the same matters. See Westfall, 484
U.S. at 300 (“Congress is in the best position to provide
guidance for the complex and often highly empirical inquiry into
whether absolute immunity is warranted in a particular
context.”). There is no qualifier to section 2679(b)(2)(B) for
situations in which “the basis for jurisdiction requires action
authorized by the sovereign as opposed to private wrongdoing,”
Sanchez-Espinoza, 770 F.2d at 207, nor is there any indication
in the legislative history that Congress intended for such an
exception to apply, H.R. REP. 100-700 (1988), reprinted in 1988
U.S.C.C.A.N. 5945. The availability of immunity from section
1350 actions therefore depends on the application of the
Westfall Act.
C. Does the Westfall Act Bar Claims Asserting Official
   Torture?
     Federal courts, with “great caution,” are authorized by
statute to recognize a cause of action under section 1350 for
“definite” and “accept[ed]” violations of the law of nations.
Sosa, 542 U.S. at 732. The United States has consistently and
repeatedly condemned the use of official torture. And it is
undisputed that “deliberate torture perpetrated under color of
official authority violates universally accepted norms of the
international law of human rights, regardless of the nationality
of the parties.” Filartiga, 630 F.2d at 878. However, in order
                                 18

for appellants’ suits for official torture to proceed, they must fall
within the Westfall Act’s exception for actions “brought for a
violation of a statute of the United States under which such
action against an individual is otherwise authorized.” 28 U.S.C.
§ 2679(b)(2)(B) (emphasis added).
     The answer to the question whether the Westfall Act bars
appellants’ claims turns on how section 1350 is viewed. There
are at least two possible constructions of the ATS:
    (1) the ATS is a statute that merely serves as a
        jurisdictional vehicle for violations of the law of
        nations; or
    (2) the ATS itself incorporates the law of nations and
        furnishes jurisdiction over causes of action based on
        violations of definite and accepted principles under the
        law of nations.
If the latter construction is correct, it follows that section 1350
is capable of being violated. This is not an easy issue, and I
would be naive to suggest otherwise. But because I conclude
that the ATS incorporates the law of nations, I believe that it is
a “statute” that fits the Westfall Act exception.
    1.   The ATS “Incorporates” the Law of Nations, and It
         Would Be Ironic To Conclude Otherwise
     The Court in Sosa made clear that section 1350 differs from
other jurisdictional statutes, such as 28 U.S.C. § 1331, because
it allows courts to entertain claims derived from the law of
nations. See Stephen Satterfield, Note, Still Crying Out for
Clarification: The Scope of Liability Under the Alien Tort
Statute After Sosa, 77 GEO. WASH. L. REV. 216, 221-22 (2008)
(deeming section 1350 an “‘interactive’ jurisdictional statute”
because it “laid the jurisdictional foundation that allowed the
newly formed district courts to hear causes of action arising
under the law of nations”). As the Court says in Sosa, “the ATS
                                19

was meant to underwrite litigation of a narrow set of common
law actions derived from the law of nations.” 542 U.S. at 721.
Therefore, pursuant to the ATS, federal courts have an
obligation to recognize causes of action based on clear and
definite violations of the law of nations. And, as the Court
noted, the law of nations may be enforced under section 1350
“without further statutory authority.” Id. at 729 (emphasis
added).
    In assessing the ATS, Sosa read the Court’s precedents to
hold that
    •    “United States courts apply international law as a part
         of our own in appropriate circumstances”;
    •    “International law is part of our law, and must be
         ascertained and administered by the courts of justice of
         appropriate jurisdiction, as often as questions of right
         depending upon it are duly presented for their
         determination”; and
    •    “The Court is bound by the law of nations which is a
         part of the law of the land.”
Sosa, 542 U.S. at 729-30 (brackets and citations omitted). As
Judge William A. Fletcher has noted, “[t]he Court’s decision [in
Sosa] . . . necessarily implies that the federal common law of
customary international law is federal law in the supremacy-
clause sense.” William A. Fletcher, International Human Rights
in American Courts, 93 VA. L. REV. 653, 665 (2007). To me,
this indicates that section 1350 itself effectively incorporates the
law of nations.
     My line of analysis can be disputed. What cannot be
doubted, however, is that it would be ironic to conclude that the
Westfall Act bars claims resting on allegations of official
torture. Under the majority’s approach, despite the fact that
torture has long been illegal under United States law, see supra,
                                20

a United States official who tortures a foreign national in a
foreign country is not subject to suit in an action brought under
section 1350, whereas a foreign official who tortures a foreign
national in a foreign country may be sued under section 1350.
E.g., Filartiga, 630 F.2d 876 (allowing action to proceed under
section 1350 against Paraguayan official for torture committed
in Paraguay).
     This is a bizarre result, because, in enacting the Westfall
Act, Congress apparently meant only to immunize common-law
torts against federal officials. See H.R. REP. NO. 100-700, at 2
(1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5945 (noting that
purpose of bill was to “provide immunity for Federal employees
from personal liability for common law torts committed within
the scope of their employment” (emphasis added)); id. at 6,
reprinted in 1988 U.S.C.C.A.N. at 5950 (“Common law torts are
the routine acts or omissions which occur daily in the course of
business and which have been redressed in an evolving manner
by courts for, at least, the last 800 years.”); see generally Karen
Lin, Note, An Unintended Double Standard of Liability: The
Effect of the Westfall Act on the Alien Tort Claims Act, 108
COLUM. L. REV. 1718, 1740-45 (2008) (arguing that Congress
only intended the Westfall Act to apply to state-law torts).
Indeed, the Supreme Court’s decision in Westfall v. Erwin, 484
U.S. 292 (1988), which Congress specifically overruled in
passing the Westfall Act, addressed immunity in the context of
a common-law negligence suit against federal employees. There
is no evidence to indicate that Congress meant to address or
foreclose actions under section 1350 brought against federal
officials for torture; clear violations of the law of nations, such
as torture, are not akin to the types of “routine acts or
omissions” that Congress appears to have had in mind.
Therefore, it is ironic, to say the least, that “[t]he Westfall
Act . . . has proved to be a practically ‘impenetrable shield’ for
[ATS] claimants against individual U.S. officials.” Lin, 108
COLUM. L. REV. at 1736-37.
                                21

    2.   Deconstructing the Westfall Act
    The Westfall Act provides as follows:
    The remedy against the United States provided by [the
    Federal Tort Claims Act] for injury or loss of property, or
    personal injury or death arising or resulting from the
    negligent or wrongful act or omission of any employee of
    the Government while acting within the scope of his office
    or employment is exclusive of any other civil action or
    proceeding for money damages by reason of the same
    subject matter against the employee whose act or omission
    gave rise to the claim or against the estate of such
    employee. Any other civil action or proceeding for money
    damages arising out of or relating to the same subject
    matter against the employee or the employee’s estate is
    precluded without regard to when the act or omission
    occurred.
28 U.S.C. § 2679(b)(1) (emphases added). In sum, the Westfall
Act prohibits civil suits against U.S. employees in their
individual capacities arising out of the scope of their
employment.
     As noted above, however, the Westfall Act excepts from its
grant of immunity all civil actions “brought for a violation of the
Constitution of the United States” or “brought for a violation of
a statute of the United States under which such action against an
individual is otherwise authorized.” 28 U.S.C. §§ 2679(b)(2)(A),
(b)(2)(B).
     Appellants argue that their section 1350 claims fall within
the Westfall Act’s exception for “violation[s] of a statute of the
United States under which such action[s] against an individual
[are] otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). In
response, the Government relies on the Supreme Court’s
decision in United States v. Smith, 499 U.S. 160 (1991), to
support the proposition that “this exception to the Westfall
                                22

Act . . . [applies] only to federal statutes that provide both a
cause of action and the substantive law which the employee is
alleged to have violated.” Appellees’ Br. at 47 (emphasis in
original). The Government also refers to the Ninth Circuit’s
decision in Alvarez-Machain v. United States, 331 F.3d 604 (9th
Cir. 2003) (en banc), rev’d on other grounds sub nom. Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004).
     The Ninth Circuit concluded that “a claim under the [ATS]
is based on a violation of international law, not of the [ATS]
itself.” 331 F.3d at 631. Several district courts have followed
this line of analysis. See, e.g., Al-Zahrani v. Rumsfeld, 684 F.
Supp. 2d 103, 114-16 (D.D.C. 2010); Rasul v. Rumsfeld, 414 F.
Supp. 2d 26, 37-38 (D.D.C. 2006) (issue not appealed);
Bancoult v. McNamara, 370 F. Supp. 2d 1, 9-10 (D.D.C. 2004).
In my view, these decisions are flawed, because they fail to
acknowledge a critical distinction between the Gonzalez Act –
the statute at issue in Smith – and section 1350.
     The Gonzalez Act, like the Westfall Act, is a grant of
federal employee immunity. Specifically, it provides that “in
suits against military medical personnel for torts committed
within the scope of their employment, the Government is to be
substituted as the defendant.” Smith, 499 U.S. at 162 (citing 10
U.S.C. §§ 1089(a), (b)). In Smith, the plaintiffs sued a U.S.
military physician for negligence in federal court, and the United
States sought to substitute itself for the physician under the
Westfall Act. The plaintiffs objected, arguing that their claim
would have been permitted under the Gonzalez Act due to an
implicit exception in that statute, and that, as a result, the claim
should be exempted from Westfall Act immunity due to
§ 2679(b)(2)(B)’s exception for claims brought pursuant to a
federal statute. The Supreme Court disagreed, holding that:
“[n]othing in the Gonzalez Act imposes any obligations or
duties of care upon military physicians. Consequently, a
physician allegedly committing malpractice under state or
                               23

foreign law does not ‘violate’ the Gonzalez Act.” Smith, 499
U.S. at 174.
     The Court’s decision in Smith seems plainly inapposite
here. In contrast to the Gonzalez Act, section 1350 is a statute
enabling the federal courts to impose liability – not limit
liability. Because section 1350 expressly incorporates the “law
of nations,” it is a statute that can be violated.
    3.   The ATS Is Not a Jurisdictional Statute Akin to
         Section 1331 – It Is Therefore a “Statute” Sufficient
         To Satisfy the Westfall Act Exception
     The Supreme Court emphasized in Sosa that, in comparing
the ATS with the grant of federal-question jurisdiction, 28
U.S.C. § 1331, “[s]ection 1350 was enacted on the congressional
understanding that courts would exercise jurisdiction by
entertaining some common law claims derived from the law of
nations; and we know of no reason to think that federal-question
jurisdiction was extended subject to any comparable
congressional assumption.” 542 U.S. at 731 n.19. Thus, if
Congress repealed section 1350, federal courts would have no
authority today to recognize common law causes of action for
violations of customary international law, such as torture. See
Mohamed v. Rajoub, 634 F.3d 604, 609-10 (D.C. Cir. 2011)
(holding that appellant had no cause of action for violation of
customary international law pursuant to 28 U.S.C. § 1331); see
also Sosa, 542 U.S. at 712 (“[W]e think that at the time of
enactment [of the ATS] the jurisdiction enabled federal courts
to hear claims in a very limited category defined by the law of
nations and recognized at common law.”). This makes section
1350 inherently different from other jurisdictional statutes, such
as section 1331, and quite different from the Gonzalez Act. See
generally Satterfield, 77 GEO. WASH. L. REV. at 221-22;
William S. Dodge, Bridging Erie: Customary International Law
in the U.S. Legal System After Sosa v. Alvarez-Machain, 12
TULSA J. COMP. & INT’L L. 87, 97-100 (2004) (analyzing Sosa’s
                               24

discussion of congressional intent in enacting section 1350 as
compared to section 1331).
     Section 1350 parallels section 301(a) of the Labor
Management Relations Act of 1947. Section 301(a) provides
that
    Suits for violation of contracts between an employer and a
    labor organization representing employees in an industry
    affecting commerce as defined in this chapter, or between
    any such labor organizations, may be brought in any district
    court of the United States having jurisdiction of the parties,
    without respect to the amount in controversy or without
    regard to the citizenship of the parties.
29 U.S.C. § 185(a). In Textile Workers Union of America v.
Lincoln Mills of Alabama, 353 U.S. 448 (1957), the Supreme
Court held that section 301(a) “authorizes federal courts to
fashion a body of federal law for the enforcement of these
collective bargaining agreements,” 353 U.S. at 451 – despite the
fact that the plain text of this provision only speaks to federal
jurisdiction. See also Sosa, 542 U.S. at 726 (citing Lincoln Mills
as an example of a “haven” of federal common law). Just as
section 301(a) provides jurisdiction and allows federal courts to
create federal common law to enforce collective bargaining
agreements, section 1350 provides jurisdiction and allows
federal courts to create a federal common law remedy for
definite and accepted violations of customary international law.
In other words, it is section 1350, not international law, that
gives federal courts the authority to enforce “international norms
that a federal court c[an] properly recognize as within the
common law enforceable without further statutory authority.”
Sosa, 542 U.S. at 729 (emphasis added). This makes section
1350 “statutory authority” sufficient to satisfy the Westfall Act
exception.
                                25

     It might be argued that Smith should be read to bar the
Westfall Act exception from applying here, because section
1350 does not explicitly incorporate the law of nations. That
was the view taken by the Ninth Circuit, even as that court
acknowledged that the Gonzalez Act and section 1350 have very
different purposes. See Alvarez-Machain, 266 F.3d at 1054.
Although this argument is not without force, I disagree. Like
section 301(a), as interpreted by the Court in Lincoln Mills, a
federal statute may incorporate enforceable substantive rights
even though the statute does not spell out the details of those
rights. It is true that Sosa says that, since Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), “the general practice has been to
look for legislative guidance before exercising innovative
authority over substantive law,” Sosa, 542 U.S. at 726; but Sosa
opened the door to the recognition of causes of action alleging
wrongs – such as official torture – that violate the law of
nations.
     In short, I believe that Smith has no application here,
because, as noted above, Smith was focused on the Gonzalez
Act, not section 1350. Unlike the Gonzalez Act, section 1350 is
a statute authorizing the federal courts to impose liability – not
limit liability. I therefore conclude that section 1350 fits within
the exception to the Westfall Act for “violation[s] of a statute of
the United States under which such action[s] against an
individual [are] otherwise authorized,” 28 U.S.C.
§ 2679(b)(2)(B). Accordingly, I dissent from the majority’s
disposition of appellants’ claims under section 1350.
                     III. CONCLUSION
    Twenty-seven years ago, in Tel-Oren, I said that “[t]his case
deals with an area of the law that cries out for clarification by
the Supreme Court.” 726 F.2d at 775. I say the same again
here.
                               26

     I thought that the Court’s decision in Sosa afforded the
lower federal courts the amplification and clarification necessary
to understand how to process claims properly brought under
section 1350. Obviously, I was mistaken. Some of my
colleagues on the federal bench believe that the Westfall Act
takes away what the ATS gives insofar as it allows causes of
action against state actors who perpetrate torture under the color
of official authority. Ultimately, after careful consideration of
this difficult question, I think the decisions that have endorsed
this approach are misguided.
     Even if ATS actions against state actors were barred by
principles of common law immunity, as this court thought in
Sanchez-Espinoza, I believe that Congress vitiated that
immunity when it enacted the Westfall Act. In my view,
Congress’ decision to overrule Westfall v. Erwin, 484 U.S. 292
(1988), and to codify the official immunity doctrine, including
the 28 U.S.C. § 2679(b)(2)(A) and (b)(2)(B) exceptions – which
are explicit waivers of immunity – clearly preempted any
preexisting common-law applications of immunity with respect
to the same matters. And I believe that actions that are
cognizable under section 1350 – such as allegations of official
torture – fall within the Westfall Act’s exception for
“violation[s] of a statute of the United States under which such
action[s] against an individual [are] otherwise authorized.” Id.
§ 2679(b)(2)(B). On this last point, I agree with Judge Fletcher
that Sosa “necessarily implies that the federal common law of
customary international law is federal law in the supremacy-
clause sense.” William A. Fletcher, International Human Rights
in American Courts, 93 VA. L. REV. 653, 665 (2007). For me
this means that it is section 1350, not international law, that
gives federal courts the authority to enforce international norms
that a federal court can properly recognize as within the
common law enforceable “without further statutory authority.”
Sosa, 542 U.S. at 729 (emphasis added). As I see it, section
1350 is “statutory authority” sufficient to satisfy the Westfall
                                27

Act exception. Some may disagree with my analysis, but at this
point I cannot see why.
    As I noted above, I think it is fair to say that the developing
case law is ironic. As one commentator has noted:
    In the past thirty years, the [ATS] has become an important
    instrument in advancing human rights claims before U.S.
    courts. In light of this exceptional statute, the Westfall
    Act’s effect of immunizing U.S. officials is doubly ironic:
    Not only has the country that led the way in allowing aliens
    to vindicate their rights against foreign officials maintained
    official immunity for its own officials even in the face of
    modern human rights accountability, but it has also done so
    unintentionally. As a result, U.S. courts apply a double
    standard of liability whereby foreign officials may face
    liability for international law violations while U.S. officials
    have absolute immunity for those same violations.
Karen Lin, Note, An Unintended Double Standard of Liability:
The Effect of the Westfall Act on the Alien Tort Claims Act, 108
COLUM. L. REV. 1718, 1719 (2008) (footnotes omitted).
     I do not agree with the courts that have helped to create this
irony by granting immunity to United States officials from ATS
actions. It is hard to fathom why Congress would pass a law
that makes all government officials – except our own – subject
to liability for torture committed overseas. There is nothing to
indicate that Congress meant to achieve this result when the
Westfall Act was passed. Maybe it is time for Congress to give
the judiciary better directions on this matter.
