[00:00:02] Speaker 00: Case number 14-5194, Amir Michelle Appellant versus Chris Higginbotham, FBI supervising special agent, and his individual capacity at L. Mr. Heffetz for the appellant, Mr. Whitaker for the appellees. [00:00:24] Speaker 05: Good morning, Your Honors. [00:00:26] Speaker 05: This case presents a limited but fundamental question. [00:00:29] Speaker 05: Does an American citizen have any remedy against FBI agents who coercively interrogated him with threats of disappearance and death and denied him access to a court for four months to compel a confession? [00:00:41] Speaker 05: This case addresses the same core misconduct as Bivens, an innocent American citizen seeking redress against law enforcement agents who engaged in gross misconduct to obtain evidence of a crime. [00:00:53] Speaker 05: Dismissing under special factors would create a gaping exception to Bivens for American citizens abroad. [00:00:59] Speaker 05: It would create the perverse incentive or perverse result that law enforcement agents can violate the Fourth and Fifth Amendment rights of citizens abroad with impunity and face judicial scrutiny only if they submit a case to prosecution. [00:01:11] Speaker 05: This result contradicts the core principle of Bivens, which provides a remedy when a citizen not accused of any crime is subjected to a constitutional violation out of Mitchell v. Forsythe, which says the rationale for Bivens applies even more forcefully in suits against law enforcement officials, implicating national security. [00:01:28] Speaker 05: A Bivens remedy must be available because this case does not present a new context, and because even if it did, Mr. Machat has no alternative remedy, and the balance of factors weighs in favor of recognizing a Bivens remedy. [00:01:41] Speaker 05: Further, defendants are not entitled to qualified immunity because the right of a private American citizen to be free of month-long extrajudicial detention and coercive interrogation was abundantly clear, whether at home or abroad. [00:01:55] Speaker 04: Ms. [00:01:55] Speaker 04: Davis, you are aware of our Doe [00:01:58] Speaker 04: precedent. [00:01:58] Speaker 04: And although you, I think, with some formal plausibility, characterize this as the kind of claim against a kind of defendant as to which we've recognized Bivens case's claims in the past, the question is here, isn't this actually really quite different? [00:02:15] Speaker 04: I mean, what do you anticipate you would need to prove were this Bivens case to go forward? [00:02:22] Speaker 04: Wouldn't it have to inquire into [00:02:24] Speaker 04: What were the reasons that Mr. Michel was picked up where he was picked up? [00:02:28] Speaker 04: What was the government's program in sifting through the people coming out of Somalia going to Kenya? [00:02:34] Speaker 04: What was the relationship between the United States FBI and the law enforcement in those countries? [00:02:40] Speaker 04: So it quickly seems that we would get into areas that touch on our national security and foreign relations. [00:02:49] Speaker 05: Yes, Judge Peller. [00:02:51] Speaker 05: As we explained, this case is distinct from Dell, which was focused specifically in the context of military detention of a service of a contractor, so effectively of a soldier in a war zone. [00:03:06] Speaker 05: And here we're dealing with the same categories as Bivens, [00:03:11] Speaker 05: It's a different fact pattern for sure, but it's the same fundamental category. [00:03:16] Speaker 05: It's a suit by a private citizen against law enforcement officials. [00:03:19] Speaker 04: You made a rough shot over his right side. [00:03:21] Speaker 04: I'm asking a question at a little more concrete and granular level. [00:03:26] Speaker 04: You would go forward and you would have your client testify that all the things that are in the complaint. [00:03:32] Speaker 04: I was wandering through the woods. [00:03:35] Speaker 04: And the government then would turn around and have to provide some basis and justification and context. [00:03:41] Speaker 04: the first thing that they would have to do would be to put them in a very different position, I think, from the federal narcotics agents in the Bivens case. [00:03:50] Speaker 04: No? [00:03:51] Speaker 04: I mean, how do you envision that going at a more granular level? [00:03:55] Speaker 05: So I think your question really is going more to the foreign relations aspect as opposed to the national security aspect, but let me respond. [00:04:05] Speaker 05: The inquiry here, the basic claim which we've pled is that the FBI agents had control of Mr. Michelle and exercised that control by giving him a choice, face disappearance or death or confess. [00:04:20] Speaker 05: The detention claim, our claim, our Fourth Amendment claim, our detention claim, [00:04:26] Speaker 05: we would need to prove what we've alleged that the FBI agents were, in fact, in control of Mr. Michelle and that the foreign officials, the Kenyan Ethiopian officials, were agents. [00:04:37] Speaker 05: This is an inquiry, this is precisely the inquiry that federal courts conduct in criminal cases [00:04:46] Speaker 05: where there's an allegation that evidence obtained by foreign agents was done at the behest of the United States. [00:04:54] Speaker 05: So this is an inquiry that Judge Bates underscored in the Abu Ali case, which involved a similar situation. [00:05:00] Speaker 05: The foreign agents as – foreign officials as agents of the U.S. [00:05:05] Speaker 05: It's an inquiry, he said, is not unusual for federal courts. [00:05:09] Speaker 05: It's done frequently. [00:05:12] Speaker 05: We cite cases in our briefs to that effect, the Karakei case, the Mount case, the Vittorio case. [00:05:17] Speaker 05: So this is an inquiry that courts undertake all the time. [00:05:20] Speaker 05: Oh, I'm sorry to interrupt you. [00:05:24] Speaker 04: Go ahead. [00:05:25] Speaker 05: I was just going to say at the end, the remedy may be different. [00:05:29] Speaker 05: Here it's damages, and there it was suppression. [00:05:32] Speaker 05: But the whole point of Bivens is to provide a remedy for the individual whose rights are abused by FBI agents and who's not charged with a crime. [00:05:42] Speaker 04: But I think one of the things the government would say, and they've said in their briefs, is that criminal cases are different because the government can choose whether to bring those cases or not. [00:05:49] Speaker 04: So they're taking it upon themselves, is it worth it to us to deal with this? [00:05:53] Speaker 04: Do we have a plan for how we're going to deal with these foreign relations and national security questions? [00:05:58] Speaker 04: Whereas here, anybody could bring a business case for you to prevail and not in their control. [00:06:06] Speaker 05: But there's no, there's no, I mean, that is Bivens. [00:06:09] Speaker 05: That's the teaching and the lesson of Bivens and Justice Harlan's concurrence is the citizen whose rights are violated, there's a completed constitutional violation, and they're not brought to trial. [00:06:19] Speaker 02: Just the defendant here were CIA or military, same rule? [00:06:26] Speaker 02: CIA or military officer? [00:06:29] Speaker 05: If it was military detention, I mean, that's a different case. [00:06:33] Speaker 05: If it was military detention, that would be a different defendant. [00:06:40] Speaker 05: That would be a different category of defendant. [00:06:42] Speaker 05: Doe was very focused on the identity of the defendant. [00:06:47] Speaker 05: So if it was a military detention outside of war zone, well, that would be different than Doe, but it would be different from this case. [00:06:52] Speaker 02: What about CIA? [00:06:54] Speaker 02: The same thing. [00:06:56] Speaker 05: It's a different category of defendant. [00:06:58] Speaker 05: It's a law enforcement agent, and it's a criminal investigation. [00:07:03] Speaker 01: Well, to follow up on that, because you and the government characterize this differently. [00:07:09] Speaker 01: You say this is a criminal investigation. [00:07:11] Speaker 01: They invoke national security. [00:07:13] Speaker 01: Does it make any difference? [00:07:18] Speaker 05: Well, no, Your Honor, it doesn't, because what Mitchell stands for, there you had a law enforcement agent in a national security context, and the Supreme Court clearly implied a Bivens remedy. [00:07:30] Speaker 05: It specifically cites Bivens in front of the opinion. [00:07:34] Speaker 05: And Bivens has never depended on the type of crime. [00:07:38] Speaker 05: The focus in the special factors case law is on the category of the defendant, [00:07:43] Speaker 05: on the type of plaintiff – type of defendant and type of claim. [00:07:48] Speaker 05: So it doesn't – and the upshot of the government's argument is that the same result would apply whether this happened in Kenya, Ethiopia, or in London. [00:07:58] Speaker 05: You'd be giving the government officials carte blanche to violate a U.S. [00:08:02] Speaker 05: citizen's right abroad because they're outside the United States. [00:08:06] Speaker 05: Because any of those kinds of cases would involve, to some extent, a foreign relations component. [00:08:12] Speaker 02: So I think there are two factors that may, and this is a close case, I'll say that at the outset, two factors that may make this different. [00:08:23] Speaker 02: One is abroad, that it's happening abroad, and two, [00:08:27] Speaker 02: the national security component. [00:08:30] Speaker 02: And it's more than just a vague allegation of national security. [00:08:33] Speaker 02: It's suspected member or supporter of al-Qaeda in a congressional authorized war. [00:08:40] Speaker 02: So those two things together [00:08:42] Speaker 02: are arguably, the government would say, a new context that we should be cautious about extending Bivens into. [00:08:52] Speaker 02: Maybe just one of those two wouldn't be enough. [00:08:54] Speaker 02: If we're in the United States, not enough. [00:08:56] Speaker 02: If it's abroad, but a drug trafficking investigation, maybe not enough. [00:09:00] Speaker 02: But the two factors together, abroad and national security. [00:09:05] Speaker 02: So can you respond to that? [00:09:07] Speaker 02: I don't think Bivens has been extended abroad by the Supreme Court yet. [00:09:12] Speaker 02: So, if you can deal with that, too. [00:09:15] Speaker 05: Yeah, well, as I said at the outset, Your Honor, our argument is this is not a new context, but even if the Court were to conclude it was because it's, for example, of those two factors, the national security and abroad, [00:09:27] Speaker 05: National security is not a trump card. [00:09:30] Speaker 05: The presence of special factors is not a trump card. [00:09:33] Speaker 05: And at the end of the day, under Wilkie, the court has to weigh the factors and exercise its judgment as a common law tribunal. [00:09:42] Speaker 05: And there are the fact we've got a US citizen, and under this circuit and the Supreme Court's president, the US citizen whose rights and liberties are threatened is entitled to the supreme protection. [00:09:53] Speaker 05: We've got judicial competence. [00:09:55] Speaker 05: in handling exactly these types of claims, national security and claims involving extraterritoriality. [00:10:02] Speaker 05: And we have Congress, which has never suggested that there should not be a Bivens Remy. [00:10:08] Speaker 05: In fact, it's ratified Bivens. [00:10:10] Speaker 02: In the wartime, let me just pose a question this way. [00:10:16] Speaker 02: The Fourth Amendment and how the Fifth Amendment apply to officers in these circumstances, there's going to be some black and white, but there's going to be some gray area, I assume, as to what they can and cannot do. [00:10:28] Speaker 02: And won't Bivens deter them [00:10:31] Speaker 02: from doing what they might otherwise do in the gray area? [00:10:36] Speaker 02: And is that a concern that we should be worried about that Congress should be regulating the gray area in a wartime war-related effort? [00:10:45] Speaker 05: Well, I think what Congress has regulated – to the extent Congress has regulated what you described as the gray area – it's regulated with a specific focus of military detainees and not law enforcement. [00:10:56] Speaker 05: As the Doe Court makes clear, that was – kind of the DTA was a regulation of individuals in military custody. [00:11:05] Speaker 05: And second, I think your question is addressed at special factors. [00:11:11] Speaker 05: The extent that you're concerned about a gray area and the potential chill, I think that is a concern that's addressed by qualified immunity. [00:11:20] Speaker 05: I mean, the purpose of qualified immunity is not to deter officials from vigorously doing their job. [00:11:29] Speaker 05: As I said, we think the right was clearly established. [00:11:31] Speaker 05: But to deny a cause of action, [00:11:33] Speaker 05: would not only cover those gray areas, which are covered by qualified immunity, it would give the government carte blanche. [00:11:40] Speaker 05: It wouldn't matter if they could. [00:11:41] Speaker 04: Is Bivens constitutional common law in the sense that were a court to recognize a cause of action in this kind of context, nothing would prevent Congress from changing that. [00:11:57] Speaker 04: Would it? [00:11:57] Speaker 04: I mean, it's not constitutionally compelled simply because the cause of action is based on the Constitution. [00:12:04] Speaker 05: our position is more Congress to legislate at a minimum raise serious constitutional questions but under but certainly one could one could reach the conclusion that Congress could [00:12:16] Speaker 05: could preclude, could regulate the area and could preclude a Pivens remedy. [00:12:21] Speaker 04: And an alternative remedy that had more clear immunities, that codified what counts as national security, that explained and took into account the overseas and national security concerns in a way that no current statutory law clearly does, right? [00:12:39] Speaker 04: And if they put that into effect, it would seem to me that that would be under [00:12:46] Speaker 04: Bush, Chiliki, Chappelle, Stanley, you know, we know that there would be authority presumably for Congress to do that, no? [00:12:54] Speaker 05: Yes, that's what those cases, the Bush and Schweiker cases suggest, but you know, where Congress enacts a comprehensive remedial scheme that intentionally provides damages in certain claims or doesn't provide them for other claims, but we don't [00:13:09] Speaker 05: But that's not what's happened here. [00:13:11] Speaker 05: Congress has approved of the Bivens Remedy, and it's regulated in other specific areas, but it's never questioned Bivens against law enforcement. [00:13:20] Speaker 04: Right. [00:13:20] Speaker 04: I'm just saying, were we to go ahead thinking Congress had not [00:13:24] Speaker 04: And if we were wrong, I'm just trying to figure out, let's say we were to go ahead and rule that there is a Bivens claim in this context. [00:13:32] Speaker 04: I'm just trying to understand the stakes of such a ruling. [00:13:34] Speaker 04: It would seem to me that Congress would have a thought to say, oh, no, no, no, no. [00:13:38] Speaker 04: We actually didn't. [00:13:40] Speaker 05: Yes. [00:13:40] Speaker 05: I mean, certainly under Schweiker and those cases, the conclusion could be drawn that Congress had regulated and precluded. [00:13:47] Speaker 05: But at this point, Congress has, if anything, suggested a Bivens remedy. [00:13:50] Speaker 02: Well, can Congress withdraw any remedy? [00:13:54] Speaker 02: In other words, if we rule in favor of you and the Supreme Court either agrees or doesn't touch it, could Congress withdraw any remedy, overturn the decision? [00:14:07] Speaker 02: I think that was Judge Pillard's question. [00:14:12] Speaker 02: And provide nothing. [00:14:14] Speaker 05: Our position is that for Congress to deprive a U.S. [00:14:19] Speaker 05: citizen of remedy for law enforcement violations such as those here under Supreme Court's – following the Supreme Court decision in Webster v. Doe would raise serious constitutional questions at a minimum. [00:14:30] Speaker 05: But certainly, Your Honors, could Congress – it could do that. [00:14:35] Speaker 05: And I think under Schweiker and those other cases, that would terminate a Bivens remedy. [00:14:41] Speaker 05: But Congress has not [00:14:43] Speaker 05: has not provided any other remedy and has not regulated with the rights in question. [00:14:48] Speaker 01: You've said a couple of times that Congress approved Bivens or ratified Bivens and there's an interesting argument here that Westfall kind of validates that because when they decided to codify, you know, the Westfall Act, they [00:15:10] Speaker 01: acknowledged that Bivens was out there. [00:15:15] Speaker 01: And so if we assume that you're right about that, that Congress was aware of Bivens and that they in some sense ratified it, [00:15:28] Speaker 01: At that time, they would have been looking at a Bivens that was domestic, that probably didn't involve national security. [00:15:37] Speaker 01: And doesn't that at least raise the question of what Congress would do in this circumstance? [00:15:43] Speaker 01: In other words, that they might not have ratified this kind of damages action for this kind of situation. [00:15:56] Speaker 05: Well, Your Honor, Congress in the Westfall Act in 1974 broadly preserved Bivens' remedy against and rejected Justice Department proposals to essentially eliminate Bivens. [00:16:10] Speaker 05: At the time, the Constitution clearly applied abroad to U.S. [00:16:15] Speaker 05: citizens, and those types of Fourth and Fifth Amendment violations that Bivens – those core law enforcement violations that Bivens covers would have been within the review of Bivens. [00:16:27] Speaker 05: And when Congress [00:16:31] Speaker 05: legislated in the, yeah, I'll stop there, Your Honor. [00:16:37] Speaker 02: If this were a statute, if Bivens were a statute, any person injured in violation of the Constitution has a cause of action against the official for compensatory damages. [00:16:50] Speaker 02: We would apply the presumption against extraterritoriality to that statute, at least under the most recent Supreme Court case law. [00:16:58] Speaker 02: and would conclude, I think, that the statute, the Bivens Statute, does not apply broad acts and some congressional statement or indication to that effect. [00:17:09] Speaker 02: So how do we deal with Kiobel, Morrison, presumption against extraterritoriality here? [00:17:16] Speaker 05: Well, as you know, Your Honor, Keobel is, of course, is only a presumption. [00:17:22] Speaker 05: The presumption can be overcome. [00:17:23] Speaker 05: The Constitution has long applied to U.S. [00:17:27] Speaker 05: citizens abroad, and Keobel itself recognizes that [00:17:37] Speaker 05: the presumption may be overcome if a case that touches and concerns the United States. [00:17:42] Speaker 05: If we're talking specifically about Cuba, now that was a foreign-cubed case, foreign plaintiff, foreign defendant, foreign territory. [00:17:50] Speaker 05: This case is very different. [00:17:52] Speaker 05: It's a U.S. [00:17:52] Speaker 05: plaintiff. [00:17:53] Speaker 05: It's a U.S. [00:17:53] Speaker 05: defendant. [00:17:54] Speaker 05: It's the only thing foreign is the territory. [00:17:55] Speaker 05: So I think, again, this is a statutory presumption, and the presumption is in the context of legislation, because Congress presumes to legislate with domestic [00:18:04] Speaker 02: Although, as you know, Kiobel did say it was, they recognized there was not a statutory cause of action there, there was a common law cause of action, but nonetheless supplied the presumption. [00:18:14] Speaker 02: And you raised good arguments about why not to apply that here, I think, and that's another close issue here, I think, is how that applies here. [00:18:23] Speaker 02: You've raised a couple times that this is law enforcement, not national. [00:18:27] Speaker 02: security, but isn't that either or not realistic in the way the FBI operates today and has operated post-September 11th? [00:18:39] Speaker 02: In other words, I think two presidents and lots of attorney generals have said that one of the tools in the war against al-Qaeda is the FBI and domestic prosecution. [00:18:51] Speaker 02: So this divide that perhaps used to exist to some extent [00:18:56] Speaker 02: doesn't exist anymore because a lot of what the FBI does is assist in the war effort. [00:19:04] Speaker 05: Well, our position is this was a law enforcement investigation that may have implicated national security, but I mean, if we look at the specific allegations here, FBI agents were taking Mr. Machado out day after day, questioning him. [00:19:22] Speaker 05: forced him to waive his Miranda rights, sign a waiver of rights form, in order to obtain, to try to obtain a confession. [00:19:30] Speaker 05: You can look at the case of Daniel Maldonado. [00:19:33] Speaker 02: But they did that, they did that because they suspected, whether rightly or wrongly, they suspected that he had some involvement with Al Qaeda. [00:19:43] Speaker 05: Yes, it's a law enforcement investigation with national security implications, but Bivens has never depended on the type of crime. [00:19:55] Speaker 05: I think your point underscores exactly the risk of [00:20:02] Speaker 05: denying any cause of action here because the extent of the FBI is increasingly involved in national security and criminal investigations, there's a huge area or a gaping hole for U.S. [00:20:15] Speaker 05: citizens who have no remedy if their rights are violated by law enforcement. [00:20:20] Speaker 05: So to the extent those are intertwined, I think that counsel is in favor of remedy because it would leave a [00:20:27] Speaker 05: give the FBI carte blanche to violate a citizen's rights in a number of cases, and the argument is also not limited to, uh, territorially. [00:20:36] Speaker 02: This might be a bit of a double-bank shot, but if we recognize Bivens for FBI agents, but not for CIA and military officials who do the same kind of activity abroad, [00:20:48] Speaker 02: wouldn't that be encouragement not to use the FBI in these kinds of activities, encouragement to the executive branch when the executive branch has said repeatedly that they want to use the FBI and want to use the criminal process to assist the war effort rather than relying just on the CIA and military? [00:21:08] Speaker 05: Well, Your Honor, I think I'd answer it this way. [00:21:11] Speaker 05: There needs to be a line somewhere, and I think DOE provides one line where you're talking about people who are military detainees in a war zone. [00:21:24] Speaker 05: Here we're talking about FBI agents investigating someone for the purpose to obtain a confession. [00:21:31] Speaker 05: I mean, that's what really brings us close to Bivens here, outside of a war zone. [00:21:58] Speaker 06: There's three separate aspects of this case that distinguish it from a run-of-the-mind law enforcement case. [00:22:07] Speaker 06: First and foremost, the national security aspect, second, the foreign relations aspect, and third, the extraterritorial aspect. [00:22:15] Speaker 06: in turn, this case would inevitably require inquiry into relations between various foreign governments who are alleged to have cooperated with the Bureau in investigating counterterrorism abroad in East Africa. [00:22:34] Speaker 06: And that is a quite significant aspect of this case. [00:22:36] Speaker 06: It actually makes it stronger in that regard, I think. [00:22:38] Speaker 02: But it's a U.S. [00:22:39] Speaker 02: citizen. [00:22:40] Speaker 02: It's a U.S. [00:22:41] Speaker 02: citizen, so the floodgates would not necessarily open. [00:22:45] Speaker 02: And you know this kind of hypothetical is coming, but a U.S. [00:22:48] Speaker 02: citizen can be tortured, killed abroad by an FBI agent without remedy under your theory of the case. [00:22:59] Speaker 06: Well, I think that – a couple answers to that, Your Honor. [00:23:02] Speaker 06: I think, first of all, [00:23:04] Speaker 06: The Doe Court recognized that an individual's citizenship is not sufficient in and of itself to mitigate otherwise present sensitivity. [00:23:14] Speaker 02: But the constitutional rights, at least as I understand the Constitution, goes with the US citizen everywhere in the world vis-a-vis the US government. [00:23:23] Speaker 02: So the US citizen has a constitutional right abroad, whereas the non-US citizen would not have a constitutional right abroad against the United States. [00:23:34] Speaker 06: That's true. [00:23:35] Speaker 06: Now, I think it's also true that the manner and extent of constitutional protection that might apply to United States citizens abroad are not necessarily the same as those that would apply to the rest of the country. [00:23:46] Speaker 02: I'm not sure I agree with you about that. [00:23:49] Speaker 02: So assume you're not right about that. [00:23:53] Speaker 02: The Fourth Amendment and Fifth Amendment apply to US citizens abroad. [00:23:58] Speaker 02: And obviously, what's reasonable may be different. [00:24:02] Speaker 02: You know, it's troubling to think about the FBI can just, and CIA, under your theory, anyone, any US official can detain a US citizen. [00:24:15] Speaker 02: Forever without remedy. [00:24:17] Speaker 06: Two points on that. [00:24:18] Speaker 06: First, a legal point, and then a practical point. [00:24:21] Speaker 06: First, the legal point on the merits, whether there is a violation, is, of course, distinct from the threshold question under Bivens of whether there is any cause of action at all. [00:24:32] Speaker 06: And I mean, all of these cases do involve troubling allegations. [00:24:35] Speaker 06: I mean, do involve very troubling allegations. [00:24:38] Speaker 06: But the court said that the national security and military concerns an issue in that case. [00:24:43] Speaker 06: counseled caution before implying a Bivens action. [00:24:45] Speaker 06: Second, I don't think it's quite right to say that there is no remedy whatsoever for a citizen in that circumstance. [00:24:53] Speaker 06: Number one, we do have the federal torture statute, which is admittedly a criminal statute, which does provide for criminal prosecution of United States, anywhere in the world, if a United States government official commits torture, [00:25:06] Speaker 06: That can be criminally prosecuted. [00:25:08] Speaker 06: And second, we also do have the Torture Victim Protection Act, which would apply to the extent any such mistreatment was done under the color of foreign law. [00:25:18] Speaker 02: Foreign law, yeah, not by the U.S. [00:25:20] Speaker 02: officials. [00:25:21] Speaker 06: Well, but I guess what I'm saying, keep in mind in this case, the allegation is that [00:25:27] Speaker 06: there were various foreign governments involved in this mistreatment. [00:25:31] Speaker 06: I mean, one of the allegations is that the Somalis held Mr. Mishal under conditions that were bad. [00:25:37] Speaker 06: And I suppose there could be the potential, I guess, for a TDPA claim against the Somalis who are not party here. [00:25:44] Speaker 04: But... But under your position, someone who wasn't tortured but was just deprived of Fourth Amendment rights, you know, arrested without cause, locked up in London, you know, someone the United States didn't want to have [00:25:55] Speaker 04: out at a demonstration when dignitaries were visiting. [00:25:58] Speaker 04: No claim. [00:26:01] Speaker 04: No remedy there under the Torture Victims Protection Act, I would assume. [00:26:04] Speaker 06: Well, that's true. [00:26:05] Speaker 06: And that's true. [00:26:06] Speaker 06: And that's because, as the Supreme Court and this Court have made clear, in precedent dating back 30 years, the absence of remedy under any [00:26:22] Speaker 06: in the sensitive, particularly in the sensitive context. [00:26:26] Speaker 04: Well, let's talk about what makes it sensitive. [00:26:27] Speaker 04: I mean, if we put aside and bracket the notion that there's simply no extraterritorial application at all and look to your slightly narrower ground that, well, this implicates foreign relations and or national security, how do we know in this case [00:26:44] Speaker 04: that national security is really implicated. [00:26:46] Speaker 04: Your position is extremely broad, and I noticed in your brief that the main authority that you cite, and I think you block quoted four times, is the district court's description that this case implicates national security threats in the Horn of Africa region, substance and sources of intelligence, the extent to which each government in the region participates or cooperates with U.S. [00:27:06] Speaker 04: operations to identify, apprehend, detain, and question suspected terrorists on their soil. [00:27:11] Speaker 04: We don't seem to have [00:27:13] Speaker 04: any statement by anyone, either Kenyan magistrate, American judge, even ex parte, not the commander in the Horn of Africa, not any delegate of the president, unlike in the LeBron case, nothing saying, we have reason to believe that this man is cooperating with terrorists. [00:27:33] Speaker 04: He was picked up and there's no certification, as far as I'm aware, and maybe you can fill us in on that, that this person was in fact suspected to be an enemy combatant. [00:27:45] Speaker 04: Do we have such a determination? [00:27:46] Speaker 06: Well, Your Honor, this case is obviously at the pleading stage of the case. [00:27:52] Speaker 06: So the allegations of the complaint must be taken as true. [00:28:00] Speaker 06: As the case goes forward and has to be litigated, it's going to be inevitable that questions are going to arise about what was the manner of detention? [00:28:09] Speaker 06: Why was it being detained? [00:28:11] Speaker 06: And it is the mere prospect of that kind of inquiry, litigation inquiry, that raises the sensitivities that this case implicates. [00:28:21] Speaker 04: So I have two questions about that. [00:28:23] Speaker 04: One is, can you tell me, as a representative of the government, whether there is a practice of some kind of determination of someone being an enemy combatant, or suspected of being an enemy combatant? [00:28:36] Speaker 04: Is there any kind of practice or policy of doing that, or are we just going on these more functional questions, which are very serious, and I want to ask you about those, too. [00:28:45] Speaker 04: What would a trial get into? [00:28:47] Speaker 04: But just as a threshold matter, [00:28:51] Speaker 06: Well, there are in certain contexts, maybe not applicable here, where we do make sort of formal determinations about an individual's status. [00:29:02] Speaker 06: I'm not aware that that's necessarily routinely done in the course of counterterrorism investigations. [00:29:09] Speaker 06: So I'm not aware of any such practice in this particular context. [00:29:14] Speaker 06: We have, in the Gitmo detainee context, for example, we have something similar. [00:29:22] Speaker 04: And you see the concern that the Supreme Court has basically said, even in the context of aliens who don't enjoy these constitutional rights, there is some requirement that there be a threshold determination. [00:29:36] Speaker 04: It's very difficult at the pleading stage to say, [00:29:39] Speaker 04: without a reason to think any such determination has been made here, that national security is sufficient because it's very broad. [00:29:45] Speaker 04: It's a very broad rationale. [00:29:47] Speaker 06: Your Honor, it is precisely because such a determination must be made in this litigation that it raises sensitivity touching on foreign policy and national security. [00:29:58] Speaker 04: Let's talk about that. [00:30:01] Speaker 04: We have the general statements by a very able district court judge, hypothesizing about what might have to be gone into, but we also have extremely refined expertise in our district courts about how to deal with national security problems. [00:30:19] Speaker 04: We have Judge Bates' opinion in Abu Ali, dealing with the habeas petition, very similar issues, and again, not state secrets, [00:30:29] Speaker 04: in camera, you know, qualified immunity. [00:30:34] Speaker 04: You know, there are many, many ways that we can deal with classified information and national security. [00:30:42] Speaker 04: And my question to you is, wouldn't that be the way to deal with concerns that I think are very [00:30:47] Speaker 04: and legitimate concerns the government has in these kinds of cases. [00:30:51] Speaker 06: Well, this court in Wilson versus Libby rejected the argument that the presence of those kind of safeguards mitigate the possibility that a case might implicate sensitive intelligence matters, and so did the Second Circuit in Iraq. [00:31:04] Speaker 04: Well, Wilson is a little bit of a different case, right, because there was the Privacy Act. [00:31:08] Speaker 04: That was more like a Bush versus Lucas. [00:31:13] Speaker 04: There's a separate regime dealing with the claims there. [00:31:16] Speaker 06: No, Your Honor. [00:31:20] Speaker 06: that Wilson, that the plaintiff there would have had no remedy under the Privacy Act whatsoever was specifically excluded. [00:31:31] Speaker 06: And then Davis versus Billington in 2012 made that [00:31:36] Speaker 06: that determination even more pointed with regard to a plaintiff who was excluded under the Civil Service Reform Act. [00:31:43] Speaker 04: But when Congress has a Civil Service Reform Act or the Privacy Act, when they've done a detailed scheme, they don't have to provide a remedy. [00:31:50] Speaker 04: They've considered and they've said, OK, in this situation, we have a CIA operative. [00:31:55] Speaker 04: There are reasons why we're not going to go into her relationship with the government and that she gives that up. [00:32:02] Speaker 04: And it's like the military cases. [00:32:03] Speaker 04: Someone goes in. [00:32:05] Speaker 04: And they're subject to military chain of command. [00:32:07] Speaker 04: They may not get any damages anywhere. [00:32:09] Speaker 04: And that's clearly established under our Supreme Court presence. [00:32:12] Speaker 04: This is quite different. [00:32:13] Speaker 06: Well, actually, no, Your Honor. [00:32:14] Speaker 06: I don't think it is any different. [00:32:16] Speaker 06: As this court noted in Doe versus Rumsfeld, congressional action in the field of overseas interrogation and detention has been anything but inadvertent. [00:32:26] Speaker 06: And just to correct one thing that counsel said, Doe relied on the Detainee Treatment Act for that. [00:32:31] Speaker 06: The Detainee Treatment Act is not limited to military personnel. [00:32:34] Speaker 06: It applies to all U.S. [00:32:37] Speaker 06: government personnel. [00:32:37] Speaker 06: All U.S. [00:32:38] Speaker 06: government personnel cannot engage in cruel, inhumane, or degrading treatment. [00:32:43] Speaker 06: Anywhere in the world, there would be decaying treatment. [00:32:45] Speaker 06: And that's clear. [00:32:46] Speaker 06: It's also clear that Congress in enacting the Federal Torture Statute, in enacting the Torture Victim Protection Act, in enacting the Military Claims Act, and all these various forms of legislation. [00:33:01] Speaker 06: damages action that applies in this context. [00:33:03] Speaker 06: And I think that is something like a scheme that is indicative of Congress's intent in this context. [00:33:10] Speaker 06: Is this court held in Doe versus Rumsfeld? [00:33:13] Speaker 02: But this wouldn't be a new category of defendants, nor a new kind of cause of action. [00:33:21] Speaker 06: No, I disagree with that, Your Honor. [00:33:23] Speaker 02: It would be a new... It's a Fourth Amendment claim against FBI agents. [00:33:28] Speaker 02: That's core Bivens. [00:33:30] Speaker 06: Well, but just because it's a Fourth Amendment claim doesn't mean it's not a new context. [00:33:34] Speaker 06: I mean, Wilkie was a Fourth Amendment case, for example. [00:33:37] Speaker 06: I mean, the Supreme Court has said you have to look, you can't just say... [00:33:41] Speaker 06: same constitutional amendment done, you have to look at the context. [00:33:44] Speaker 06: And this is what this court had to say and know about that in saying that it was a new context. [00:33:49] Speaker 06: The Supreme Court has never implied Bivens remedy in a case involving the military, national security, or intelligence. [00:33:57] Speaker 06: And so I think this court recognized that that would be a new context. [00:34:02] Speaker 06: And the court in advance did the same thing in noting that the Supreme Court has never recognized Bivens action [00:34:09] Speaker 06: or conduct that occurred by United States officials. [00:34:13] Speaker 02: So just on your position, can I ask if this had happened in the United States, but was national security related in the sense of suspected al-Qaida Bivens? [00:34:26] Speaker 06: It would be a more difficult case, Your Honor, but we are not urging any categorical rule that a victim's action is unavailable simply because it involves a counterterrorism investigation. [00:34:38] Speaker 06: However, I would say this. [00:34:40] Speaker 06: I mean, in the LeBron case, that involved detention that did occur in the United States. [00:34:46] Speaker 06: And the court didn't just say it occurred in the United States. [00:34:50] Speaker 06: go home, the court looked at the sensitivities that the claim raised. [00:34:55] Speaker 06: And so I think in an appropriate case, we might or might not assert a special background. [00:34:59] Speaker 02: Now, why isn't, to the extent Pivens is a deterrent, [00:35:03] Speaker 02: of behavior that we as a system, as a country, want to be deterred. [00:35:10] Speaker 02: Why isn't it good to have a Bivens remedy for these kinds of situations with qualified immunity as counsel rightly stated as the backdrop that provides a lot of protection and running room in the gray area for your clients? [00:35:24] Speaker 06: Well, I mean, the Supreme Court in Stanley could not have been more clear that the question of immunity is entirely distinct from the threshold question of whether there's a Bivens action. [00:35:33] Speaker 06: But I think, as Your Honor pointed out in the opening, I mean, since the Bivens inquiry is very context sensitive, I mean, I don't think that U.S. [00:35:43] Speaker 06: officials can count on getting a special factors defense. [00:35:45] Speaker 06: So there is still a deterrent, because you can't be certain [00:35:49] Speaker 06: whether a special factors defense would actually be accepted. [00:35:52] Speaker 06: It depends on the circumstances. [00:35:54] Speaker 02: Well, if we rule the way you want us to rule, they'll know. [00:35:57] Speaker 02: Then they'll know. [00:35:58] Speaker 06: Well, no, I don't. [00:36:00] Speaker 06: But again, we're not contending. [00:36:01] Speaker 06: We're not even contending for a [00:36:05] Speaker 06: stuff that happens abroad would depend on the circumstances. [00:36:09] Speaker 06: The reason this case is sensitive is because of the specific allegations it asserts. [00:36:16] Speaker 06: In particular, this notion that the court is going to preside over litigation, exploring our relationship with [00:36:23] Speaker 06: foreign governments. [00:36:23] Speaker 06: I mean, no foreign government, if that case were going to go forward, no foreign government is ever going to want to cooperate with us in a counterterrorism investigation. [00:36:29] Speaker 01: Is that the only problem here? [00:36:32] Speaker 01: Because it would call into question relationships with other countries? [00:36:36] Speaker 01: Because there are a couple of different allegations here. [00:36:40] Speaker 01: One, the detention might involve that, but what about just the interrogation? [00:36:45] Speaker 06: That's right, Your Honor, but even with regard to that claim, it would certainly implicate that, because I suppose what you're going to have to have is we're going to have to figure out what happened. [00:36:56] Speaker 06: So we're going to have to subpoena the official who was present at the interrogation in Kenya, the cellmate. [00:37:05] Speaker 06: confinement were abroad, we're going to have to figure out what the police officers saw, what they heard. [00:37:10] Speaker 01: And you think that all of this would be implicated if you were just looking at the claim of unlawful interrogation? [00:37:18] Speaker 06: Absolutely. [00:37:18] Speaker 06: And even beyond that, the allegation in this case is that the interrogation was conducted pursuant to national security policies and authorization by [00:37:31] Speaker 01: Let me ask you about that, because the government says that repeatedly, but I have a couple of questions about that. [00:37:37] Speaker 01: One is, at this point, you acknowledge that this is very early on in this case, and so aren't we required to just accept the allegations in the complaint at this point? [00:37:52] Speaker 01: And what the complaint says is this is a criminal investigation. [00:37:56] Speaker 06: Well, but the complaint also notes that the defendants were part of a combined joint task force whose mission was to conduct counter-terrorism operations abroad. [00:38:09] Speaker 06: So the complaint also alleges that. [00:38:10] Speaker 04: But Mr. Whitaker, that would apply to almost our entire counter-narcotics program as well. [00:38:20] Speaker 04: and counterfeiting, anti-counterfeiting crime and foreign corrupt practices. [00:38:25] Speaker 04: I mean, we are a global law enforcement regime at this point, so that's a very broad question. [00:38:31] Speaker 06: I believe this is more against the national security rationale. [00:38:34] Speaker 06: And I think to the extent a claim is going to require exploration of the relationship between the diplomatic relations between us and foreign governments, I think that is a very sensitive matter. [00:38:46] Speaker 06: And it would be, I think, bad do if foreign governments stopped participating in our counter-narcotics, international counter-narcotics [00:38:56] Speaker 04: Do state secrets not cover that, or are there other more targeted doctrines that cover that in a trial context? [00:39:06] Speaker 06: Well, once again, I think this court in Wilson specifically rejected the argument, and it actually was rejected in Joe as well, that the state secrets doctrine somehow exhausts the interest and the sensitivities that are implicated by this case. [00:39:24] Speaker 06: narrow circumstances. [00:39:26] Speaker 06: So that would leave a broad waterfront. [00:39:29] Speaker 04: That cuts both ways, though, really. [00:39:31] Speaker 04: I mean, the reason that we're very careful about invoking it is because it's strong medicine, because cutting off litigation is, in the name of national security, it's very strong for foreign relations. [00:39:48] Speaker 04: Let me ask you, though. [00:39:48] Speaker 04: You had mentioned before that you thought [00:39:51] Speaker 04: the Detainee Treatment Act was somehow a bar because it indicated that Congress did not want a claim like this to go forward. [00:40:02] Speaker 04: And I actually read it differently, given the immunity provision, which, I mean, it's very interesting because your position would be that in enacting the Detainee Treatment Act, the McCain Amendment, [00:40:14] Speaker 04: The main purpose of which, as I understand it, was to say, make no mistake about it, the United States is categorically opposed to torture, cruel, and human-integrating treatment. [00:40:24] Speaker 04: And then there's an immunity provision because, of course, people working in the government were concerned that that would open them, expose them to liability. [00:40:32] Speaker 04: And the immunity provision says no alien can bring a claim, civil or criminal, [00:40:39] Speaker 04: as long as the president or his designee has made a determination that the alien is engaged in or associated with international terrorist activity. [00:40:50] Speaker 04: So there's an immunity there, but an assumption, a background assumption, that there could be civil or criminal action. [00:41:00] Speaker 04: And I assume that because that immunity is only with respect to aliens that [00:41:04] Speaker 04: that the assumption, the background assumption that existing kinds of litigation, be it habeas, be it Bivens, be it a criminal action involving US citizens, are unaffected by the Detainee Treatment Act. [00:41:16] Speaker 06: Is that wrong? [00:41:17] Speaker 06: Yes, that's completely wrong. [00:41:18] Speaker 06: And it was rejected by, that exact same argument was rejected in Doe. [00:41:24] Speaker 06: And if you read on the immunity provision, there's, and I don't have it in front of me, and it's been a while since I've looked at it, [00:41:30] Speaker 06: because it's not been raised in this case, but I'll answer your question. [00:41:33] Speaker 06: I mean, the immunity provision has something in there saying it's not intended to abrogate existing immunity, some language about that, and it's not intended to be exclusive. [00:41:45] Speaker 03: Well, it's a defense that an officer, employee member, the armed forces, or other agent did not know that the practices were unlawful, and a person of ordinary sense and understanding would not know the practices. [00:41:54] Speaker 06: There's something, I don't have it in front of me, and I apologize. [00:41:57] Speaker 06: I apologize for that, Your Honor, because it hasn't been raised here, but there's some... Well, you've raised the Detainee Treatment Act, and so what we're looking at is what is the scope of the detainee treatment. [00:42:05] Speaker 06: Well, and this Court rejected that argument by citing the Detainee Treatment Act as an example of, which in that case involved a U.S. [00:42:13] Speaker 06: citizen too, and the plaintiffs in Doe made exactly the same argument that the immunity provision [00:42:18] Speaker 06: meant that the detaining treatment act did not mean that Congress's actions was not inadvertent. [00:42:23] Speaker ?: And I think. [00:42:24] Speaker 04: But I mean, there is the distinct aspect of that case, which is that it was a case against the military, right? [00:42:33] Speaker 04: Doe was a case against the military. [00:42:35] Speaker 04: And that's an area in which the Supreme Court has looked at the events and has said, [00:42:41] Speaker 04: military, remedies, military chain of command, and then in Judge Sintel's opinion, he says, yeah, the fact that this is a civilian contractor, we don't think takes it out of that. [00:42:51] Speaker 06: Except the Detaining Treatment Act, as I mentioned, is not limited to the military. [00:42:55] Speaker 06: But more fundamentally, I don't think that that conception of congressional intent that Your Honor just [00:43:01] Speaker 06: just articulated could be squared with the Stanley case, and Congress enacted that provision against the backdrop of the Stanley case and indeed Bivens itself, which indicates that the question of immunity is entirely distinct from the special factors inquiry. [00:43:16] Speaker 06: So I don't think the fact that Congress established immunity speaks at all to the existence of a Bivens action. [00:43:24] Speaker 06: And again, [00:43:26] Speaker 06: Isn't it? [00:43:28] Speaker 06: Go ahead. [00:43:28] Speaker 06: I'm sorry. [00:43:28] Speaker 06: And the court in advance talked about this, actually, Your Honor. [00:43:31] Speaker 06: And the court in advance noted any number of instances where Congress makes doubly sure to preserve various immunities. [00:43:41] Speaker 06: But that did not in any way mean that Congress implicitly sanctioned the business, actually. [00:43:46] Speaker 04: It seems quite clear to me, and I will go back and look at Vance again, but it seems quite clear to me in reading the Detainee Treatment Act, that it is simply [00:43:55] Speaker 04: declaring, as a substantive matter, the United States' position on torture, parole, and degrading treatment, and at the same time, providing an immunity, but an immunity that acknowledges the background of potential ways that these things can get into court, and doesn't go into them, doesn't push them aside. [00:44:16] Speaker 06: I mean, it might acknowledge other potential ways of getting into court, but that doesn't necessarily mean a vivid action is going to be available in each case. [00:44:22] Speaker 04: But it doesn't mean it's going to be unavailable. [00:44:26] Speaker 04: I mean, it seems like it's preserving the right of aliens to bring civil action. [00:44:31] Speaker 06: First of all, one argument in Doe, which was rejected, was that the Doe [00:44:39] Speaker 06: contemplated the existence of the Bivens Act. [00:44:42] Speaker 06: We pointed out in our brief that that's actually not true because there's any number of kinds of other kinds of tort actions that Congress could have been aiming at, for example, actions in the Religious Freedom Restoration Act, common law tort actions, and so forth, and maybe even a CDPA action. [00:45:00] Speaker 06: That's point number one. [00:45:02] Speaker 06: But two, this general notion that creating an immunity [00:45:09] Speaker 06: would result in the affirmative recognition of a Bivens action is fundamentally contrary to the Supreme Court's precedents in this area, which indicate that Bivens is really the exception, not the rule. [00:45:22] Speaker 06: So I don't think that kind of negative implication from the Detainee Treatment Act would be decisive here, but more broadly, I mean, we have one. [00:45:29] Speaker 06: more than just the Detainee Treatment Act standing alone, we also have the presumption against extraterritorial application of statutes. [00:45:37] Speaker 06: And I mean, if we had a statute, as Judge Kavanaugh pointed out, if we had a statute that created a cause of action that said for treatment broadly, [00:45:45] Speaker 06: let's say mistreatment broadly, we would presume that that did not apply extraterritorially. [00:45:51] Speaker 06: And that presumption applies a four shear right here where we do not even have a statute. [00:45:56] Speaker 06: The question is whether there is a non-statutory clause of action. [00:46:01] Speaker 06: Your Honor, as I see my time has expired, but I'd be happy to answer further questions that the court has. [00:46:08] Speaker 04: I just have one question about sort of the practical consequences for the government. [00:46:14] Speaker 04: Do you have any, [00:46:15] Speaker 04: Any information I think you can point us to about the number of Bivens cases that are filed, in particular the number of Bivens cases arising abroad or touching on national security in the last decade or so? [00:46:32] Speaker 06: I don't have a handy, I can certainly look into that, Your Honor, and do a letter. [00:46:36] Speaker 06: But I will say this, I mean, if the court were to recognize a Bivens action, I mean, one of the reasons I think such actions, and I would imagine such actions are rare, but if the court were to recognize a Bivens action in this case, I imagine that would not be true. [00:46:50] Speaker 06: So the court, the effect of the court's, I think the court has to recognize that the effect of the court's action could itself have an effect on the police. [00:46:57] Speaker 04: Although I'm interested, even, I mean, my experience in the government is a long time ago, [00:47:02] Speaker 04: Even in domestic garden variety, there's not a lot of cases that get very far. [00:47:09] Speaker 06: I don't have those statistics handy. [00:47:14] Speaker 06: I'm happy to look into it and get back to the court and send a letter. [00:47:26] Speaker 01: Mr. Havits, you have no time remaining, but we'll give you two minutes if you need it. [00:47:30] Speaker 05: Thank you, Your Honor. [00:47:31] Speaker 05: Very quickly, I'll run through a few points. [00:47:34] Speaker 05: We now exist that there were national security implications, but this was a criminal investigation. [00:47:38] Speaker 05: I would point you to, again, the treatment of Daniel Maldonado. [00:47:42] Speaker 05: Parallel to Mr. Michel, Mr. Maldonado is interrogated by the FBI. [00:47:47] Speaker 05: He confesses. [00:47:49] Speaker 05: He goes home. [00:47:50] Speaker 05: Mr. Machal maintains his innocence. [00:47:52] Speaker 05: He spends four months in detention and endures coercive threats. [00:47:56] Speaker 05: Second, the FBI, as the Donald Borelli brief makes clear, is bound by the Constitution. [00:48:02] Speaker 05: And that's all that is in question here. [00:48:05] Speaker 05: The FBI's [00:48:06] Speaker 05: treatment of a U.S. [00:48:07] Speaker 05: citizen in violation of the Constitution. [00:48:10] Speaker 05: In terms of Congress, the Westfall Act, I would note, was amended in 1988. [00:48:15] Speaker 05: So Congress returns to Bivens, the question of Bivens, after Mitchell, and makes clear and maintains that law enforcement agents, and that's all we're talking about here. [00:48:26] Speaker 05: We're not talking about the military. [00:48:27] Speaker 05: We're not talking about the CIA. [00:48:28] Speaker 05: We're talking about core misconduct by law enforcement agents. [00:48:32] Speaker 05: And Congress makes clear that Bivens remains. [00:48:36] Speaker 05: As Judge Miller pointed out, the implications of the government's position is that this would apply to all extraterritorial misconduct by the FBI, abusive detention and torture, because the FBI always needs the permission. [00:48:52] Speaker 05: of a foreign government to operate on its territory. [00:48:56] Speaker 05: So it would apply to every country. [00:48:59] Speaker 02: Well, just to be fair, I think they said it would not be categorical abroad, national security, and you look at the factors, just to be fair about their position. [00:49:08] Speaker 05: OK, well, and the DTA, Your Honor, the government's position on the DTA, DOE was specifically focused on the military. [00:49:17] Speaker 05: But if you take the government's position, the DTA is not limited by territory. [00:49:23] Speaker 05: So their position is, if the DTA bars Bivens, it would bar Bivens in the United States for all federal prisoners. [00:49:30] Speaker 05: Finally, I want to pick up on Judge Brown's question, if I just have a moment. [00:49:35] Speaker 05: You're right to point that out, Judge Brown. [00:49:37] Speaker 05: We have a detention claim and an interrogation claim. [00:49:39] Speaker 05: We think both should stand, but they are different. [00:49:42] Speaker 05: And all the government's foreign relations arguments are really directed at the detention claim. [00:49:47] Speaker 05: The interrogation claim, the threats that the FBI made against Mr. Michel, threats of death and disappearance, do not require an inquiry into whether or not the US was, as we've alleged, that the Kenyan and Ethiomans were the agents of the FBI, as we've alleged. [00:50:04] Speaker 05: You would be giving, let's be clear, you would be giving the government carte blanche to law enforcement to violate a U.S. [00:50:13] Speaker 05: citizen's core rights to torture, brutal torture, disappearance, years of detention, and there would be no remedy. [00:50:22] Speaker 05: There were criminal statutes and bivis. [00:50:24] Speaker 05: They bring up criminal statutes. [00:50:26] Speaker 02: You make very forceful and good arguments here. [00:50:30] Speaker 02: And to reiterate, I think it's a close case. [00:50:34] Speaker 02: One thing I'm trying to figure out how to factor in, it's not going to be an easy question to answer, but if you just step back and look at the grand sweep of the Supreme Court's case law on Bivens, you see skepticism and caution and limits. [00:50:52] Speaker 02: And you see Justice Souter and Wilkie, and you see Chief Justice Rehnquist and Molesko. [00:50:57] Speaker 02: And you see all these opinions that really [00:51:01] Speaker 02: say it's not quite this far and no further, but it's definitely skepticism. [00:51:07] Speaker 02: And then you see that definitely trickle down, I think, in LeBron and Vance and Doe. [00:51:14] Speaker 02: And it seems I'm concerned to the extent [00:51:19] Speaker 02: I get out of step with that, with the Supreme Court's pointing. [00:51:25] Speaker 02: And they haven't answered this case, so I understand that. [00:51:27] Speaker 02: But just the general trend of their case law has been be cautious about a non-statutory cause of action. [00:51:34] Speaker 05: If I may, again, those cases are really different. [00:51:39] Speaker 05: You're talking about new defendants, military in Vance and Doe. [00:51:42] Speaker 05: You're talking about in Minacci. [00:51:44] Speaker 05: You're talking about private prison employees, where there were also alternative remedies. [00:51:49] Speaker 05: Wilkie, you're talking about a totally different claim for retaliation with [00:51:54] Speaker 05: trespass rights. [00:51:55] Speaker 05: And here we really are at the core of Bivens, core law enforcement misconduct. [00:51:59] Speaker 02: In the end, your answer is this is 4th Amendment and 5th Amendment. [00:52:02] Speaker 02: 4th Amendment, FBI, core Bivens, just hold with that. [00:52:07] Speaker 05: Yeah. [00:52:07] Speaker 05: And only, Judge, there were only two of the justices who really focused on that it should be the precise circumstances. [00:52:17] Speaker 02: So I think the court is- Right, I agree with you on that. [00:52:18] Speaker 02: I wasn't trying to overstate that. [00:52:20] Speaker 02: It's not exactly that, but they're definitely cautious. [00:52:23] Speaker 02: Yeah, I agree with you. [00:52:24] Speaker 01: The government says they are not looking for a categorical rule. [00:52:29] Speaker 01: Are you? [00:52:29] Speaker 01: In other words, what you're wanting the court to say is that in these kinds of circumstances, a Bivens action would always be available. [00:52:44] Speaker 05: We're talking about a very limited category of cases. [00:52:47] Speaker 05: We're talking about, as the government acknowledged, talking about US citizens whose rights [00:52:53] Speaker 05: are egregiously violated, as the district court concluded, by law enforcement agents. [00:52:59] Speaker 05: We're not talking about military. [00:53:02] Speaker 05: We're not talking about intelligence officials. [00:53:04] Speaker 05: We're not talking about a war zone. [00:53:06] Speaker 05: We're talking about a very limited category of cases. [00:53:08] Speaker 05: And conversely, again, to deny a remedy here would [00:53:14] Speaker 05: leave the FBI and law enforcement agents with the freedom to violate U.S. [00:53:20] Speaker 05: citizens' rights outside the United States, and I think as the DTA point and the government's point, the DTA makes clear, would have implications for federal prisoners within the United States. [00:53:30] Speaker 05: We're asking for something that's, I think, very limited and is on a par with the court's long recognition, the circuit's long recognition, of the rights to U.S. [00:53:39] Speaker 05: citizens' Fourth and Fifth Amendment rights when they're abroad. [00:53:42] Speaker 05: There'd be no question that if Mr. Machal had been brought back in charge, he would have been able to assert those rights. [00:53:48] Speaker 05: The court would have adjudicated these exact claims. [00:53:51] Speaker 05: But because he wasn't charged, because he's innocent, he's denied a remedy. [00:53:56] Speaker 05: directly contrary to Justice Harlan's teaching in the concurrence of Bivens itself. [00:54:04] Speaker 01: Thank you. [00:54:07] Speaker 01: Thank you, counsel. [00:54:07] Speaker 01: The case will be submitted.