OPENING Your Honor and may it please the Court, I am competitor 2786, and I will be arguing the Bivens

issue for the Respondents, Alicia Glass and Cyrus I. Arnold. Respondents respectfully request that this Court affirm the ruling of the District and Circuit courts as to the Bivens claim and hold that the Petitioner, Ivan Sobek, is not entitled to the extension of a Bivens implied cause of action to the context of extraordinary rendition. ROADMAP Applying this Courts Bivens jurisprudence, the instant case presents facts tending to implicate a new context in which a Bivens remedy has not previously been applied. Because this is a new context, the issue becomes whether extension of Bivens into these sorts of cases would be proper. The alternative remedies available to Petitioner along with the special factors of national security and foreign affairs intertwined with Petitioners case clearly indicate that extension of Bivens into this new context would be both unwarranted and unwise. AS TO CONTEXT, Petitioners allegations of extraordinary rendition and torture by foreign citizens are wholly unlike factual scenarios in which Bivens has previously been applied, and so the instant case is indeed a new context for Bivens. Corr. Servs. Corp. v. Malesko, followed by the Second Circuit in Arar v. Ashcroft and by the Circuit Court in the instant case, described that a claimant seeks an extension of Bivens when he seeks to extend Bivens liability to any new context or new category of defendants. Here, Petitioner seeks to do both. New defendants o This Court recently rejected vicarious liability under Bivens for supervisory government officials in Ashcroft v. Iqbal, in which it considered a Bivens claim brought by a plaintiff alleging violations of his constitutional rights while in federal custody. Per Iqbal, under Bivens, masters do not answer for the torts of their servants unless claimants plead facts showing the supervisory defendants implemented the policies at issue for an unconstitutional purpose rather than a neutral investigative reason. o Even if Petitioner shows Respondents were directly involved with the extraordinary rendition program, he has not alleged they did so for an unconstitutional purpose. Respondents swore upon taking office to support and defend the constitution, and torture is clearly illegal under United States law, and so only speculation can support the contention that Respondents intended the atrocities Petitioner alleges. o Therefore Petitioner clearly seeks to extend Bivens liability beyond supervisory officials with intent to those with only alleged knowledge of constitutional violations. This is a new class of defendants.

New factual context o In Arar, the Second Circuit construed context as a potentially recurring scenario that has similar legal and factual components, and following suit, the Circuit Court below held the context of Petitioners suit as that of extraordinary rendition of a U.S. citizen. o In Arar, the court held the complicity or cooperation of U.S. government officials in the delivery of the claimant to a foreign country for torture was indeed a new context. The facts of the case at bar are similar, and indeed no court has previously extended a Bivens remedy into the context of the extraordinary rendition of a U.S. citizen.

SEVERAL CONSIDERATIONS WEIGH AGAINST EXTENDING BIVENS INTO THIS NEW CONTEXT The most recent examination of a Bivens claim before this Court was in Wilkie v. Robbins, in which Justice Souter, writing for the majority, discussed the courts reluctance to extend Bivens in the forty years since that decision, noting any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement. Wilkie went on to hold if the facts do present such a new context, the court must determine whether there are any alternative remedies available obviating a Bivens remedy, and whether any special factors counsel hesitation before authorizing a new kind of federal litigation. This Court has consistently held that the availability of alternative remedies can preclude creation of a Bivens remedy o Torture Victim Protection Act o However, as this Court held in Schweiker, the mere fact that Petitioner seems to lack access to an existing remedy does not necessarily mean that one must be afforded or that the judiciary is the competent body for creating such a remedy. Besides alternative remedial structures, several special factors counsel hesitation before the creation of a new form of federal litigation. o The special factors analysis in this Courts jurisprudence requires only that these factors suggest hesitation is warranted; would thoughtful discretion pause to consider? Arar discussing Wilkie o As noted in the Circuit below, Petitioners allegations implicate the decisions and policies of the political branches in prosecuting the War on Terror as well as foreign affairs/policy o Hamdi v. Rumsfeld: Constitution recognizes that strategic matters of war making belong in the hands of those best positioned and politically accountable for making them. (supported by Dept Navy v. Egan) o The AUMF authorized Pres to use all necessary and appropriate force to combat terrorism. o The fact is the courts are simply not equipped to make decisions directly affecting national security courts are not briefed on threats to our Nation and its people, and the law must give Executive substantial authority to apprehend and detain dangerous terrorists. (Boumediene)

o Here, Petitioner was a designated enemy combatant subject to interrogation, and creations of a Bivens remedy in this context would interfere with detention and interrogation policies place the judiciary in the position of directly reviewing and evaluating military policy. Courts lack the necessary expertise and accountability to make military and foreign policy. Munaf. o Additionally, creation of a Bivens remedy in suits such as this one would create a risk of exposure of classified information. The nature of the information in these claims would ensure that the U.S. government must intervene in each in order to protect its interests. Because of the sensitive nature of the material, the government may be pressured to settle these cases, often on behalf of the defendants Bivens is intended as a deterrent (Malesko), this would defuse it. Extraordinary rendition programs are a policy choice involving a myriad of complex considerations intersecting with powers distributed throughout the three branches of government. Congress alone possesses the expertise and resources necessary to ensure the creation of a remedy that is at once fair to claimants and minimally disruptive of delicate governmental affairs.

Respondents do not ask the Court to rule on the propriety of extraordinary rendition or the truthfulness of Petitioners allegations, Respondents merely ask that this Court rule in harmony with its Bivens jurisprudence and find that the judiciary is simply not the right body to fashion a remedy for Petitioner. PRAYER Because Petitioner seeks an extension of Bivens and several factors indicate such an extension would be unwarranted and unwise, Respondents respectfully request that this Court affirm the lower courts dismissal of Petitioners Bivens claim.