On appeal in damage actions against senior federal officials by four U.K. citizens detained at Guantanamo Bay, D.C. Circuit affirms dismissal of claims under Alien Tort Claims Act, Geneva Conventions, and U.S. Constitution, holding (1) that Federal Tort Claims Act (FTCA) controlled and that Defendants' alleged mistreatment of Plaintiffs lay in course of U.S. officials' employment thus barring such claims and (2) that Religious Freedom Restoration Act does not apply extraterritorially to aliens
The U.S. government held the four Plaintiffs, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al Harith, all citizens and residents of the United Kingdom, at Guantanamo Bay, Cuba, from 2002 until their repatriation to the U.K. in 2004. All came into U.S. custody in Afghanistan; they claim that they were there only for humanitarian and religious purposes.
Their complaint alleges that, on December 2, 2002, Donald Rumsfeld, then Secretary of Defense (Defendant), approved harsh interrogation techniques such as alleged beatings, the shackling of detainees in painful stress positions, exposure to extreme temperatures and deprivation of adequate sleep, food, sanitation and medical care, intimidation with dogs, 24 hour interrogation sessions, the shaving of detainees' facial hair, solitary confinement in darkness and silence, as well as the use of "mild non injurious physical contact." Defendant Rumsfeld later withdrew his approval of these tactics. The Plaintiffs allege that prison guards systematically and repeatedly tortured them throughout their two year detention.
The U.S. let the Plaintiffs go in March 2004 and they went back to the U. K. In October 2004, they filed suit in the District of Columbia federal court. It alleged that Defendant and others had committed three violations of the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350: (1) by prolonged arbitrary detentions, (2) through torture and (3) the use of cruel, inhuman or degrading treatment.
They further relied upon violations of the Geneva Conventions, the Fifth and Eighth Amendments to the U.S. Constitution, plus breaches of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq. They seek damages for the physical and psychological trauma they suffered as a result of their detention.
In March 2005, all Defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. The District Court dismissed the ATCA, Geneva Conventions and Constitutional claims; it ruled that the Federal Tort Claims Act (FTCA) provided the exclusive remedy for alleged torts by federal officials or employees committed within the scope of their employment.
The FTCA pre empts the ATCA and Geneva Conventions claims because the Defendants' alleged authorization, implementation and supervision of the Plaintiffs' detention and torture lay within the scope of their employment. Finally, no relevant FTCA exceptions favored Plaintiffs' claims.
Responding to Plaintiffs' two Constitutional claims, Defendants' argued that the Plaintiffs had failed to allege the violation of any right protected by the U.S. Constitution for two reasons. First, the Plaintiffs, as detainees at Guantanamo Bay, Cuba, constituted aliens located outside sovereign U.S. territory at the time of the alleged violations.
Alternatively, Defendants maintained that the law had not clearly recognized any such rights as of the time the alleged violations had taken place. The District Court agreed with Defendants' alternative contention and dismissed Plaintiffs' constitutional claims.
The District Court did, however, find for Plaintiffs' on their RFRA claims. The RFRA provides in part that the "Government shall not substantially burden a person's exercise of religion" unless the Government "demonstrates that application of the burden to the person" (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
In repudiating the Defendants' argument that RFRA does not apply extraterritorially, the court cited Rasul v. Bush, 542 U.S. 466, 475 (2004) and reasoned that if the terms "territory and possession" is to have any meaning, it must include areas such as [Guantanamo], over which the U.S. exercises "perhaps as much control as it possibly could short of "ultimate sovereignty.'"
The Plaintiffs then appealed the dismissals of the ATCA, Geneva Conventions and Constitutional claims. Defendants also filed an interlocutory appeal from the denial of their qualified immunity under RFRA. The U.S. Court of Appeals for the District of Columbia Circuit, however, affirms the District's Court's dismissals of Plaintiffs' complaint and reverses the District Court's denial of the Defendants' motion to dismiss.
As to their ATCA claims, Plaintiffs argued that Defendants authorized, implemented, supervised and condoned their torture and detention and thereby violated customary international law. In 2005, the Attorney General certified that all Defendants were acting within the scope of their employment at the time of the conduct alleged in the complaint. Under the Westfall Act, the FTCA precludes "any other civil action or proceeding for money damages" for any tort committed by a federal official or employee "while acting within the scope of his office or employment." 28 U.S. C. § 2679(b)(1).
The Court of Appeals, however, rejects Plaintiffs' claims. "As the district court correctly noted, "the complaint alleges torture and abuse tied exclusively to the Plaintiffs' detention in a military prison and to the interrogations conducted therein.' ... The underlying conduct"here, the detention and interrogation of suspected enemy combatants"is the type of conduct the Defendants were employed to engage in. ... The detention and interrogation of suspected enemy combatants is a central part of the Defendants' duties as military officers charged with winning the war on terror."
"While the Plaintiffs challenge the methods the Defendants used to perform their duties, the Plaintiffs do not allege that the Defendants acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence. Therefore, the alleged tortious conduct was incidental to the Defendants' legitimate employment duties." [Slip op. 13]
As to the Convention issues, "[T]he Westfall Act provides that "[t]he remedy against the Government under the FTCA is exclusive of any other civil action or proceeding for money damages . . . against the employee' ... [Cite.] The Plaintiffs' claim based on the Geneva Conventions is for money damages and the alleged conduct falls within the Defendant's scope of employment." [Slip op. 16 17]
The D.C. Circuit, relying on its previous decision in Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), cert. granted, 127 S.Ct. 3078 (2007) [Suspension Clause challenge to the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006], as well as Johnson v. Eisentrager, 339 U.S. 763 (1950), agrees with Defendants, and rejects Plaintiffs' claims that the more favorable Rasul case (above) should govern. The Court, however, distinguishes Rasul because it dealt with statutory habeas corpus, and had not reached any constitutional issues that would be relevant in a Bivens action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
As to the RFRA, the Plaintiffs' contended that the Defendants had inhibited and constrained religiously motivated conduct central to Plaintiffs' religious beliefs, imposed a substantial burden on Plaintiffs' abilities to exercise or express their religious beliefs and regularly and systematically engaged in practices specifically aimed at disrupting Plaintiffs' religious practices in violation of RFRA . ..." [Slip op. 21]
Because the RFRA does not define the term "person," the appellate Court looks beyond the statutory language and examines other sources in order to determine its meaning. It declares that "as originally enacted [the RFRA] did not expand the scope of the exercise of religion beyond that encompassed by the First Amendment," and that "[b]ecause RFRA's purpose was thus to restore what, in the Congress's view, is the free exercise of religion guaranteed by the Constitution, the term "person' as used in RFRA should be interpreted as it is in constitutional provisions." [Slip op. 24]
The Court then examines previous cases about the meaning of "people" and "person" under the Fourth and Fifth Amendments, citing both Eisentrager and United States v. Verdugo Urquidez, 494 U.S. 259 (1990), for their rejection of extraterritorial application of the Constitution. "RFRA's use of "person' should be interpreted consistently with the Supreme Court's interpretation of "person' in the Fifth Amendment and "people' in the Fourth Amendment to exclude non resident aliens. Because the Plaintiffs are aliens and were located outside sovereign U.S. territory at the time their alleged RFRA claim arose, they do not fall with the definition of "person.' Accordingly, the district court erred in denying the Defendants' motion to dismiss the Plaintiffs' RFRA claim." [Slip op. 24 25]
Citation: Rasul v. Myers, 2008 WL 108731, No. 06 5209 (D.C. Cir. January 11, 2008).
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