 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 LECRAFT 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
future actions. Id. at 820. If a court decides that the defendant


     15
        We recognize that the Saucier approach is “often beneficial”
and helps “promote[] the development of constitutional precedent.”
Pearson, 129 S. Ct. at 818. 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. Id. 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

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.”
Detainees Litig., 479 F. Supp. 2d at 105. The Supreme Court
long ago recognized as much in Eisentrager:

     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

    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
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
                                  20

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
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

     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

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
administrative claim with either the Department of Defense
(DoD) or the appropriate military department before bringing

     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
contrary authority from an en banc court or the Supreme Court.”).
                                  22

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
exception.”22 414 F. Supp. 2d 26, 37-38 (D.D.C. 2006). The

     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)).
     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.
                                23

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
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
                                  24

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

     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.
     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
                                   25

     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


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

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.”).
     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


     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

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,
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.
                               28

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.
