Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
“friendly” by the local military commander before becoming eligible to pursue a claim under the
FCA. Furthermore, all claimants must file within two years of the occurrence in question.
FCCs decide claims on the basis of prevailing local tort law for both liability and
damages. Once a claimant accepts the payment authorized by the FCC, the claim is considered
satisfied in full, and the claimant releases the United States from any further liability arising from
the incident at issue. If a claim is denied, the claimant may request that the commission
reconsider the case. Failing that, the claimant may request further review by a higher military
authority—either the Judge Advocate General (JAG) or the Secretary of the relevant branch of the
military (or her designee). Any mistake committed by the FCC in either law or fact permits the
JAG or Secretary to reexamine the case and correct the error. Beyond that, however, only fraud,
substantial new evidence, or an error in calculation justifies further review.
Because neither the FTCA nor the FCA waives sovereign immunity for torts committed
by the United States overseas, the federal judiciary has no jurisdiction to hear claims of this sort
either in the first instance or on appeal. Therefore, the procedure offered by the local FCC stands
as the only recourse for individuals harmed by American forces overseas.
Another place where liability questions have arisen in the armed conflicts of the past
decade is with respect to Bivens liability for torture. In Arar v. Ashcroft, 585 F.3d 559 (2d Cir.
2009) (en banc), the Second Circuit declined to recognize Bivens liability for torture resulting
from the government’s policy of extraordinary rendition. Maher Arar, a Syrian-born Canadian
citizen, was detained by the INS while on a layover at JFK Airport in New York. After twelve
days in custody, he was removed to Syria, where he underwent confinement and torture. Arar
alleged, inter alia, that government officials had violated his Fifth Amendment substantive due
process rights by deporting him to a foreign country to face coercive interrogation. The district
court dismissed Arar’s claim, and the Second Circuit affirmed on the grounds that extending
Bivens liability to cases involving extraordinary rendition would have the “tendency to affect
diplomacy, foreign policy, and the security of the nation.” Id. at 574.
The dissenters objected to reaching the merits of the Bivens claim and argued instead in
favor of deciding the case on the narrower grounds of the state secrets doctrine. They would have
allowed Arar’s claim to proceed, though they conceded that it would almost certainly fail once the
government asserted the state secrets privilege upon remand. Id. at 638 (Calabresi, J., dissenting)
(“holding that Arar, even if all of his allegations are true, has suffered no remediable
constitutional harm legitimates the Government’s actions in a way that a state secrets dismissal
would not”).
Other circuits have been no more willing than the Second to extend Bivens liability to
cases involving allegations of torture arising out of U.S. national security programs. Both the
D.C. Circuit, Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011), and the Seventh Circuit, Vance
v. Rumsfeld, 701 F.3d 193, 202 (7th Cir. 2012), have dismissed Bivens actions for post-9/11
torture as prohibitively threatening to important government interests. Only the Fourth Circuit,
El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), has taken the approach favored by the
Arar dissenters and declined to reach the merits of the Bivens claim, relying instead the state
secrets doctrine in its dismissal of the case. As of yet, no federal court has recognized a Bivens
action for damages arising from torture in the extended national security state.
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