Petition for Writ of Certiorari — Rasul v. Myers (No. 09-227)

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Supreme Us.

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“w vo.

Me ge 2 AIG 24 2009

4 OFFICE OF THE CLERK

Jn Ube Clem

Supreme Court of the wittfra States

SHAFIQ RASUL, et al.,

Petitioners,

RICHARD MYERS, Air Force General, et al.,

Respondents.

On PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

Michael Ratner Eric L. Lewis

Shayana Kadidal Counsel of Record

CENTER FOR BAACH RORINSON &

CONSTITUTIONAL RIGHTS LEWIS PLLC

666 Broadway, 7th Floor 1201 F Street, N.W., Suite 500

New York, New York 10012 Washington, D.C. 20004

212) 614-6438 (202) 833-8900

Counsels for Petitioners Dated: August 24, 2009

THE LEX GROUP®S ¢ 1750 K Street N.W. @ Suite 475 @ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax (202) 955-0022 ¢www.thelexgroupdc.com

QUESTIONS PRESENTED

Whether the Court of Appeals erred in failing

to reach the question of whether detainees at

Guantanamo have the constitutional right not

to be tortured in light of this Court’s vacatur,

on the basis of its decision in Boumediene uv.

Bush, of the Court of Appeals’ previous

decision in this case that detainees have no

constitutional rights?

Whether the Court of Appeals erred in holding

that petitioners’ ciaim for religious abuse and

humiliation at Guantanamo was _ not

actionable under the Religious Freedom

Restoration Act, 42 U.S.C. §2000bb, ef seq.,

because they are not “persons”?

Whether the Court of Appeals erred in holding

that respondents are entitled to qualified

immunity because petitioners’ right not to be

tortured was not “clearly established” at the

time of their detention?

PARTIES TO THE PROCEEDING

Petitioners:

Shafiy Rasul

Asif Iqbal

Rhuhel Ahmed

Jamal Al-Harith

Respondents:

Former Secretary of Defense

Donald Rumsfeld

Air Force General Richard Myers (Ret.)

Army Major General Geoffrey Miller (Ret.)

Army General James T. Hill (Ret.)

Army Major General

Michaei E. Dunlavey (Ret.)

Army Brigadier General Jay Hood

Marine Brigadier General Michael Lehnert

Army Colonel Nelson J. Cannon

Army Colonel Terry Carrico

Army Lieutenant Colonel William Cline

Army Lieutenant Colonel Diane Beaver (Ret.)

ill

Intervenors:

None

AmIcl:

The following Amici presented their views to

the Court of Appeals:

The National Institute of Military Justice,

Brigadier General (Ret.) David M. Brahms,

Lieutenant Commander (Ret.) Eugene R.

Fidell, Commander (Ret.) David Glazier,

Elizabeth L. Hillman, Jonathan Lurie, and

Diane Mazur.

Susan Benesch, Lenni B. Benson, Christopher

L. Blakesley, Arturo J. Carlllo, Roger S. Clark,

Marjorie Cohn, Rhonda Copelon, Angela B.

Cornell, Constance de la Vega, Martin

Flaherty, Hurst Hannum, Dina _ Haynes,

Deena Hurwitz, Ian Johnstone, Daniel

Kanstroom, Bert Lockwood, Beth Lyon, Jenny

S. Martinez, Carlin Myer, Noah Benjamin

Novogrodsky, Jamie O’Connell, Jordan J.

Faust, Naomi Roht-Arriaza, Meg

Satterthwaite, Ron Slye, Beth Van Schaack,

David Weissbrodt, and Ellen Yaroshefsky, The

Center for Justice and Accountability, Human

Rights Watch, the Allard K. Lowenstein

International Human Rights Clinic, and

Physicians for Human Rights.

The Baptist Joint Committee for Religious

Liberty, the National Association of

Evangelicals, the National Council of

Churches, the American Jewish Committee,

the Stated Clerk of the General Assembly of

the Presbyterian Church (U.S.A.), the General

Conference of Seventh-Day Adventists, and

the United States Conference of Catholic

Bishops.

Charles Carpenter, Judith Brown Chomsky,

George M. Clarke Iil, Jerry Cohen, Joshua

Colangelo-Bryan, George Daly, Jeffrey Davis,

Josh Denbeaux, Mark Denbeaux, Stuart

Eisenberg, Elizabeth P. Gilson, Candace

Gorman, Eldon Greenberg, C. Clark Hodgson,

Jr., Gaillard : ¥ Hunt, Christopher

Karagheuzoff, Ramzi Kassem, Samuel C.

Kauffman, Ellen Lubell, Howard J. Manchel,

Louis Marjon, Edwin S. Matthews, Brian J.

Neff, Kit A. Pierson, Noah H. Rashkind,

Martha Rayner, Marjorie M. Smith, Clive

Stafford Smith, Mark S. Sullivan, Doris

Tennant, Robert C. Weaver, Angela C. Vigil,

Reprieve, CagePrisoners, and James Yee.

CORPORATE DISCLOSURE STATEMENT

There are no parents or subsidiaries whose

disclosure is required under Rule 29.6.

TABLE OF CONTENTS

Page

GD nyo UGPINES FORE EIIN BMGL) vcs cscescssecncsnvvesssonsescssnessesses |

PARTIES TO THE PROCEEDING .....................000 F

CORPORATE DISCLOSURE STATEMENT ............ Vv

TABLE OF CONTENTS.......... poe Ae See a ace V1

pg EY OE Says. 6 by yt. rere X1

PETITION FOR WRIT OF CERTIORARL................ ]

I MERE cies bandxsvacsnsvesosccssonvscksessnasdvecastesvasss l

STATEMENT OF BASIS

ee eT non caauganssiaveaneunectiviceascwcsevecesss

CONSTITUTIONAL PROVISIONS

Pulte Vedy ye OR bk 8) Fs.) ) re l

PE PRE RRNET E CPE EEE CB csssescsacossccnvscessvrcsceeseees 2

i THE CLAIMS: RELIGIOUS

ABUSE AND TORTURE AT

10 Nog io. 4

IT. THE TORTURE MEMO6 .....................8

I}. DECISIONS OF THE DISTRICT

SIM nes trs..<Ce cau ouctn rd wane ones scewaneieda ti 10

Vill

IV. DECISIONS OF THE COURT

Re Se sas. csebaitisnecdeducienss uainteees 11

REASONS FOR GRANTING THE PETITION ....... 13

I. THE COURT OF APPEALS

REBUFFED THIS COURT'S

MANDATE TO RECONSIDER

THIS CASE IN LIGHT OF

SE I is csivsr cas tavssegusvinensievens: 14

II. THE COURT OF APPEALS’

DECISION THAT

PETITIONERS ARE NOT

“PERSONS” FOR PURPOSES

OF THE RELIGIOUS

FREEDOM RESTORATION

ACT MISAPPLIES THAT

STATUTE AND

CONTRAVENES

LONGSTANDING SUPREME

COURT AUTHORITY

REAFFIRMED IN

BPP FEIT, vec esicssessvuncisssenssesannes 18

III. PRISONERS IN U.S. CUSTODY

AT GUANTANAMO HAVE A

CONSTITUTIONAL RIGHT

NOT TO BE TORTURED, AND

OFFICIALS WHO VIOLATE

THAT RIGHT ARE NOT

ENTITLED TO QUALIFIED

IMMUNITY.....c..cccccccccsccecccccecescceceseeeee 26

V1ll

A. Any Reasonable Officer Would

Know that Torture and

Deliberate Abuse Are _ Illegal

PAS)

Under All Sources of Law ................... 25

B,. The Court Should Make Clear

that Government Officials Who

Order Torture Are Not Entitled

to Qualified [mmunity.....................

CONCLUSION ..............

APPENDICES

APPENDIX A (Order of the United States Court

of Appeals for the District of Columbia

Circuit,

FE. DG BO csv nivcevssasiecsies alaeewea ae ane

APPENDIX B (Opinion of the United States

Court of Appeals for the District of Columbia

Circuit,

Apr. 24, 2009)

APPENDIX C (Order for Supplemental Briefing

of the United States Court of Appeals for the

District of Columbia Circuit,

POC. Ze SAPD wisiskavicneijasisevaasieeusebncsinanna eee

APPENDIX D (Letter from William K. Suter,

Clerk of the Court, to Eric Lewis Re:

Granting Petition for a Writ of Certiorari,

Dec. 15, 2008)............ DP eee Ae

«0 tent t

APPENDIX E (Opinion of the United States

Court of Appeals for the District of Columbia

Circuit,

Ne en cnsncseerasncesscencscovcceccsces 27a

APPENDIX F (Judgment of the United States

District Court for the District of Columbia,

I 9la

APPENDIX G (Order of the United States

District Court for the District of Columbia,

July 10, 2006)......... Je Tene 5 eens neu

APPENDIX H (Order and Memorandum

Opinion of the United States District Court for

the District of Columbia Circuit,

May 8, 2006) .....cccccccccsecescsecscseeeeeeeee Vantage ee94a

APPENDIX I (Order and Memorandum Opinion

of the United States District Court for the

District of Columbia,

eb. 6, 2006)....... Nee an sce sc uandnéecuseese 123a

APPENDIX J (Letter from William K. Suter, to

Eric L. Lewis,

Neen nn ne en ccsanashensndvenvnarcsccssecccens: 169a

APPENDIX K (Constitutional and Statutory

Provisions)

U.S. CONST. amend. V..

U.S. CONS’. amend. VIII...

42 U.S.C. § 2000bb, et. seq.

APPENDIX I. (Plaintiffs’ Complaint in the

United States District Court for the District of

Columbia,

Oct. 27, 2004)

APPENDIX M (Excerpts of Initial Report of the

United States to the United Nations

Committee Against Torture,

COUR: Be I vc vnc chccadcocuccutuccicetens

APPENDIX N (Excerpts of the U.S. Department

of State, Second Periodic Report of the United

States of America to the Committee Against

Torture,

Rt Ge i cxacctsoncéiucceck culaleiee

APPENDIX O (Brief of Amici Curiae Counse! for

Guantanamo Detainees, Reprieve,

Caveprisoners, and James Yee in Support of

Plaintiffs-Appellants in the United States

Court of Appeals for the District of Columbia

(Circuit

Mar. 20, 2007)

244a

2ola

xX)

TABLE OF AUTHORITIES

Page(s)

CASES

Al Odah v. United States,

321 F.3d 1134 (D.C. Cir. 2003). 25

Am. Dredging Co. v. Miller,

510 U.S. 443 (1994) 1’

Anderson v. Creighton,

483 U.S. 635 (1987) .... 16

Boumediene v. Bush,

476 F.3d 981 (D.C. Cir. 2007), rev'd

553 U.S. , 1288. Ct. 2229 (2008)..... passim

Bridge v. Phoenix Bond & Indem. Co..,

553 U.S. , 128 8. Ct. 2131 (2008) 4

Brown v. Mississippi,

287 U.S. ZTE (1 SS6) .....cccccsceres: ; hte Oe

City of Boerne v. Flores,

521 U.S. 507 (1997) .... 2]

De Lima v. Bidwell,

182 U.S. 1 (1901) , 23

Dorr v. United States

195 U.S. 138 (1904) 23

Employment Div. Dep't of Human

Resources of Or. v. Smith

194 U.S. 872 (1990) |}

FDIC l Vever

510 U.S. 471 (1994) 20

ilartiga v. Pena lrala,

630 F.2d 876 (2d Cir. 1980)

Goldman v. Weinberger,

175 U.S. 503 (1986) 21

Hamdan Rumsfeld

115 F 38d 33 (D.C. Cir. ZOOS). reud

548 US. 557 (2006) 20D

Harlow v. Fitzgerald

157 U.S. 800 (1982) 39

Hebert v. Loutstiana.

‘

272 U.S. 312 (1926) iv

[Tope Pelzer.

5386 U.S. 730 (2002). > |

Johnson v. Eisentrager,

$39 U.S. 763 (1950) 11. 15. 33

Malley v. Briggs

175 US. 335 (1986) s4)

O’Lone v. Estate of Shabazz

182 U.S. 342 (1987) 29

Pearson v. Callahan,

Rae we. Th. BOD CZ) onc sss escensceses 13, 16, 17, 18

Rasul v. Bush,

542 U.S. 466 (2004) .............. Seca a ea passim

Rasul v. Myers,

Sia fF. 684 (OC. Civ. 2008) ..........0c5000500.. )

Rasul v. Myers,

O68 F.30 O27 (D.C. Cir. 2008) onc cccicsscccssssisesscss. 1

Reid v. Covert,

BN 0 NE Bsc scene ccncisaniaancnnxvocsardivepansans 33

Saucier v. Katz,

Be GF te, BE CED vices sksviiscoccessarsncanssvs 16, 17

Schlup v. Delo,

ee ks SE ND vised ois sacadedsdacensunccnaxcsose 17

Snyder v. Massachusetts,

ee ee re FE isis kc eeaiesninee 32

Sosa v. Alvarez Machain,

ee TT Te, Ge Ce i cindisseontddnckevmincces 29, 30

United States v. Lanter.

ae Rie BO CE avs vs cihasvavcsndese ousnn neni dy ee

U/nited States v. Rutherford,

Fe ee ID gecko se dn snd hc cdss aso if |

United States v. Verdugo-Urquidez,

454 U.S. 259 (1990) ©... ..50....ccccccecscss. cecaesa eee

X1V

Zadvydas v. Davis,

533 U.5. 676 (200)) ............. vee ier iad

CONSTITUTIONAL PROVISIONS

Ms ah RIE, PIN. Bovis cnciscistics esses tiedsscceaaes

Ms ae. SAP. MORORG. FV oo ciccccosscssicissecsesescevers

RF ate I MW aie isayclavsesusncsscerdtrtasveoaes

Os UE, HS oi she eneeacesenes

St SAIL. CARIN, VILE cision cases cccvsenyecdencees

U.S. CONST. amend. XIV...........

STATUTES

Pe Re Ms ee Bese eise a ocseeesscnenens

MR as i EE aa so sedis cavceccsnavievatinsssncaeess

B23 USC. S ZOIOD, Cb BO. occ cnciccescesceccessscscness

RULE

gh ae RS Pe” | | | ee en

een ee

21, 22, 38

12, 23, 28

.... passim

tne 28

Pere eery

.... passim

TREATY

United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

2 U.S. Dep’t of State, Treaties in Force at 182

(2007), available at

http://www.state.gov/documents/organization/89668.

TUNE sacs cin scuoenivcanseccunvadensuaacensnbaabecs aaa 9, 30

OTHER AUTHORITY

Brief of the United States as Amicus Curiae,

City of Boerne v. Flores, 1997 U.S. S. Ct.

Brieis LEAS 185 Wan. 10, 1987) ......cccccccesccccessescnces 22

Initial Report of the United States to the

United Nations Committee Against Torture

CU Pee., EB; Te cisincsccvacsssxerceviodaceeenean eee 31

Second Periodic Report of the United States to

the United Nations Committee Against

‘Torture Ulery 6, Fe) 6 ikcisiccnneuncsnoee eee 32

S. Rep. 103-111, as reprinted in 1993

U6 ACC AL, Tei cccnccn sip ubiavedestsacssesaieer ee 21

Uniform Code of Military Justice............... erent 36

PETITION FOR WRIT OF CERTIORARI

Petitioners Shafiq Rasul, Asif Iqbal, Rhuhel

Ahmed, and Jamal Al-Harith respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of

Columbia Circuit.

OPINION BELOW

The opinions below are reported as Rasul v.

Myers, 563 F.3d 527 (D.C. Cir. 2009) (Appendix

(“App.”) B), and Rasul v. Myers, 512 F.3d 644 (D.C.

Cir. 2008) (App. E).

STATEMENT OF BASIS FOR JURISDICTION

The United States Court of Appeals for the

District of Columbia Circuit issued its opinion on

remand on April 24, 2009. Petitioners’ application to

this Court to extend the time for filing a petition for

writ of certiorari until August 24, 2009, was granted

on July 9, 2009. App. J. The Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Const. amend. V.

U.S. Const. amend. VIII.

Religious Freedom Restoration Act, 42 U.S.C.

§ 2000bb, et seq.

STATEMENT OF THE CASE

This case seeks damages from former

Secretary of Defense Donald Rumsfeld and various

members of the military chain of command for

torture and religious abuse suffered by petitioners

during their imprisonment at the Guantanamo Bay

Naval Station (‘Guantanamo’) between 2002 and

2004. This is the second time this case has been

before the Court.

In 2008, based upon its now-overruled holding

that alien detainees at Guantanamo possess no

constitutional rights, Boumediene v. Bush, 476 F.3d

981 (D.C. Cir. 2007), rev'd, 553 U.S. __, 128 S. Ct.

2229 (2008), the United States Court of Appeals for

the District of Columbia Circuit directed the

dismissal of petitioners’ claims on grounds that

petitioners are not “persons” entitled to protection of

their right to worship under the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb, et seq.

(“RFRA”), and are not entitled to be free from torture

under the Fifth Amendment. Rasul v. Myers, 512

F.3d 644 (D.C. Cir. 2008). The Court of Appeals also

held that respondents are immune from lability for

their torture and religious humiliation of petitioners.

By order of December 15, 2008, this Court granted

certiorari, vacated the Court of Appeals’ ruling, and

remanded the case for reconsideration in light of this

Court's decision in Boumedtiene v. Bush, 5538 U.S.

On remand, while stating its view that

Boumedtene is irrelevant to this case because it was

confined only to habeas corpus and therefore aliens

at Guantanamo had no other rights, the Court of

Appeals declined to base its disposition on the

applicability of Boumediene to the constitutional

violations alleged here. The Court of Appeals ruled

instead that this case should be dismissed on

grounds of qualified immunity.

The Court of Appeals’ manifest refusal to

abide by this Court’s mandate and give due effect to

Boumediene on the constitutional issues raised in

this case is reason enough to grant this writ: to

affirm the Court’s authority and compel an inferior

court to abide by its mandate. But there are even

more compelling issues which demand this Court’s

attention, issues at the core of ordered liberty: (i)

whether detainees imprisoned by the United States

at Guantanamo have a right to be free from abuse

and humiliation in the practice of their religion; (1)

whether Guantanamo detainees have a

constitutional right to be free from torture; and (111)

whether public officials who knowingly violate these

rights can escape accountability for their conduct by

raising the shield of qualified immunity when they

cannot assert this defense in good faith.

The torture and religious humiliation of

Muslim detainees at Guantanamo stands as a

uniquely shameful episode in our history. This

petition enables the Court to remedy that stain on

the moral authority of our nation and its laws, to

overrule an obdurately insupportable exercise in

statutory construction that effectively renders these

petitioners, and all other detainees at Guantanamo,

non-persons, and to facilitate accountability for these

terrible acts. Six years ago, Shafiq Rasul petitioned

this Court for the right to challenge his confinement

through habeas corpus. Rasul v. Bush, 542 U.S. 466

(2004) (““Rasul I’). This Court recognized that the

statutory right of habeas corpus extends to

Guantanamo. Id. at 481. Today, he seeks

vindication of his statutory right to religious dignity

and his right under the Constitution not to be

tortured by U.S. government officials. These are

universally recognized, irreducible minima that our

legal system must provide to those under its control.

is THE CLAIMS: RELIGIOUS ABUSE

AND TORTURE AT GUANTANAMO

The complaint below was filed by four

innocent British citizens who were incarcerated at

Guantanamo from January 2002 to March 2004.

App. 185a, 207a. Petitioners never took up arms

against the United States, never received any

military training, and have never been members of

any terrorist group. App. 183a, 19la-92a. They

have never been charged with any crime. App. 185a.

They were never determined to be enemy

combatants. Jd.! Respondents are former Secretary

of Defense Donald Rumsfeld and_ high-ranking

military officers who ordered and_ supervised

The complaint was dismissed on respondents’ motion to

dismiss. Accordingly, at this stage of the proceedings, all

factual allegations of the complaint must be presumed to be

true. Bridge v. Phoenix Bond & Indem. Co., 553 U.S. __, 128 S.

Ct. 2131, 2135 n.1 (2008)

petitioners’ incarceration and mistreatment at

Guantanamo. App. 192a-97a.

Petitioners Rasul, Iqbal, and Ahmed are

boyhood friends from the town of Tipton in England.

App. 197a. At the time they were detained, they

were 24, 20 and 19 respectively. App. 19la-92a.

Iqbal had gone to Pakistan in September 2001 to get

married. App. 198a. Ahmed joined him to be his

best man. Jd. Rasul was in Pakistan studying

computer science. Jd. All three went to Afghanistan

to assist in providing relief for the humanitarian

crisis that arose in 2001. App. 198a-99a. In

Afghanistan they were captured by Afghan warlord

Rashid Dostum, who is widely reported to have

delivered prisoners to U.S. forces for the purpose of

collecting a per capita bounty offered by the U.S.

military. App. 183a, 199a. Dostum delivered Rasul,

Iqbal, and Ahmed into U.S. custody in late 2001.

App. 200a-Ola.

Petitioner Al-Harith was also born and raised

in England. App. 192a. He is a website designer in

Manchester. App. 188a. In 2001, he traveled to

Pakistan for a religious retreat. App. 183a-84a.

When he was advised to leave the country because of

growling animosity toward the British, he booked

passage on a truck to Turkey, from which he planned

to fly home to England. App. 1844. His truck was

huyacked, and Al-Harith was forcibly brought to

Afghanistan and turned over to the Taliban. Jd. He

was accused of being a British spy, imprisoned 1n

isolation, and beaten by his Taliban guards. After

the Taliban fled in the wake of the U.S. invasion of

Afghanistan, the British Embassy’s plans _ to

evacuate Al-Harith were preempted when U5S.

forces arrived at the prison and took him into

custody. App. 184a-85a.

All four petitioners were held = and

interrogated by the United States under appalling

conditions in Afghanistan before they were

transported to (Guantanamo, where they were

systematically tortured and abused pursuant to

directives from respondent Rumsfeld and_ the

military chain of command. App. 186a-90a, 201a-

O7a. For more than two years, petitioners were

brutalized by conduct that included:

* repeated beatings (including with rifle

butts and while shackled and

blindfolded);

. prolonged solitary confinement,

including isolation in total darkness;

° deliberate exposure to extremes of heat

and cold:

. threats of attack from unmuzzled dogs;

. forced nakedness;

. repeated body cavity searches:

. denial of food and water:

. deliberate disruption and deprivation of

sleep;

* shackling in painful stress positions for

extended periods;

- injection of unknown substances into

their bodies; and

. deliberate interference with and

denigration of their religious beliefs and

practices, including the _ deliberate

submersion of the Koran in a filthy

toilet bucket.

App. 207a-25a.

Petitioners were deliberately prevented from

fulfilling their daily obligation to pray, as prayers

were frequently interrupted by shouts, taunts, and

the playing of earsplitting music over the camp

public address system. App. 24la. The chaining of

petitioners in the “short-shackling” position was not

only extremely painful but also prevented them from

taking the required posture for prayer. App. 217a-

18a. Forced nakedness violated the Muslim tenet

requiring modesty, particularly during prayer. App.

24la. Petitioners’ beards were shaved forcibly (App.

205a), an infringement of Muslim religious practice.

Desecration of the Koran was frequent and

systematic, with numerous incidents of Korans being

sprayed with high-power water hoses, splashed with

urine, and thrown in the toilet bucket. App. 224a,

241a. These were calculated and illegal displays of

disrespect toward the essential symbol of Islam.

Following their release, petitioners sued

respondents for damages in the United States

District Court for the District of Columbia. App.

179a-82a. The complaint asserted claims for torture,

religious abuse, and other mistreatment under, inter

alia, the Fifth and Eighth Amendments to the

Constitution, customary international law, the

Geneva Conventions, and RFRA. App. 232a-42a.

il. THE TORTURE MEMOS

The insulting of Muslims in their core beliefs

was not the action of rogue guards on the night shift;

it represented a clear and illegal policy choice by

senior U.S. officials systematically to denigrate

detainees Muslim beliefs and cultural practices.

Department of Defense documents reveal that the

Secretary of Defense personally ordered many of

these practices.

In their complaint, petitioners § identified

memoranda and reports generated, received, and

approved by respondents, which outlined, planned,

authorized, and implemented the program of torture

and abuse directed at petitioners and_= other

Guantanamo detainees.’ For example, on December

2, 2002, respondent Rumsfeld approved = a

memorandum specifically intended for

implementation at Guantanamo, authorizing

numerous illegal and unprecedented interrogation

methods, including putting detainees in_ stress

2 Since the filing of the complaint in 2004, numerou

additional memoranda and reports have been made public

further detailing respondents direct role in sanctioning

petitioners’ torture and abuse

positions for up to four hours; forcing detainees to

strip naked; intimidating detainees with guard dogs;

interrogating them for 20 hours at a time; depriving

them of sleep; forcing them to wear hoods; shaving

their heads and beards; incarcerating them in

darkness and silence; exposing them to extremes of

hot and cold; and using what was euphemuistically

called “mild, non-injurious physical contact.” App.

187a-88a. Petitioners were subjected to all of these

abusive practices — and more.

Rumsfeld subsequentiy withdrew this

memorandum but quickly commissioned a “Working

Group” to study detainee interrogation practices. In

its March 6, 2003 report, this group addressed the

legal consequences of authorizing these methods.

App. 188a-89a.* It detailed the requirements of

international and domestic law governing

interrogations, including the Geneva Conventions,

the United Nations Convention Against Torture,

customary international law, and numerous sections

of the U.S. criminal code. Id. The report

acknowledged that the described interrogation

techniques and conditions of imprisonment were

illegal, but it reauthorized them and sought to

identify putative “legal doctrines under the Federal

Criminal Law that could render specific conduct,

otherwise criminal not unlawful.” App. 188a

(internal quotations omitted). The purpose of the

report, like the other memos prepared and approved

by respondents, was to assist respondents in evading

recognized legal prohibitions of their intended

conduct. These documents can only be seen as a

A revised version of the Report was issued on April 4, 2003

shameful nadir for American law, exposing

respondents’ conscious and calculated awareness

that the practices they durected were illegal and in

violation of clearly established legal rights.

Ill. DECISIONS OF THE DISTRICT

COURT

In the district court, respondents moved to

dismiss the complaint, asserting, inter alia, that

plaintiffs had no rights under the Constitution.

Respondents further contended that they were

entitled to qualified immunity with respect to the

constitutional and RFRA claims. The district court

dismissed petitioners’ constitutional claims based on

qualified immunity, holding that, regardless of

whether detainees have a right not to be tortured

that is protected under the Constitution, such rights

could not have been clearly established until this

Court decided Rasul J. App. 165a.4

The district court denicd respondents’ motion

to dismiss petitioners’ RFRA claim, holding that the

complaint did allege actionable conduct. App. 95a-

96a. As the court observed, “[f]lushing the Koran

down the toilet and forcing [petitioners] to shave

their beards falls comfortably within the conduct

prohibited ... by RFRA.” App. 117a-18a. The court

further held that RFRA’s applicability to U.S.

military facilities and to U.S. civilian and military

officers, including those serving at Guantanamo, was

clear under the plain language of the statute and

' §Petitioners’ Complaint ilso asserted = claim: under

international law and the Geneva Convention These claims

are not at issue in this Petition

therefore well-established at the time _ that

petitioners were abused. App. 118a-22a.

IV. DECISIONS OF THE COURT OF

APPEALS

Respondents filed a timely notice of appeal of

the district court’s order denying dismissal on the

basis of qualified immunity with respect to the

RFRA claim. On petitioners’ request, the district

court certified its decision on the remaining issues

pursuant to Fed. R. Civ. P. 54(b), allowing the

petitioners to cross-appeal. App. 9la-93a.

Based on its now overruled opinion in

Boumediene, 476 F.3d 981, the Court of Appeals held

in 2008 that petitioners had no right under the

Constitution not to be tortured, noting that

“Guantanamo detainces lack constitutional rights

because they are aliens without property or presence

in the United States.” App. 60a. As in Boumediene,

the Court of Appeals invoked its categorical reading

of Johnson v. Hisentrager, 339 U.S. 763 (1950), as

supporting its “property or presence’ requirement

and rejected the proposition that this Court's

decision in Rasul J had distinguished Fisentrager in

the context of Guantanamo. App. 62a-65a. The

Court of Appeals held in the alternative that, even if

Guantanamo detainees had a constitutional right

not to be tortured, that right was not clearly

established and therefore respondents were entitled

to qualiMed immunity. App. 65a-67a

The Court of Appeals reversed the district

court’s ruling that denied respondents’ motion to

dismiss the RFRA claims, with the panel majority

holding that petitioners “do not fall with[in] the

definition of ‘person” under RFRA (App. 78a) and

therefore they lacked standing to invoke RFRA’s

protections. The Court of Appeals did not apply

ordinary principles of statutory construction to the

broad term “person.” Instead, it reasoned that

RFRA was in essence a codification of constitutional

free exercise principles, and therefore the word

“person” should be imbued with a constitutional

construction consistent with the Court of Appeals’

reading of this Court’s Fourth and Fifth Amendment

jurisprudence, which, the Court of Appeals

concluded, categorically excluded recognition of any

constitutional rights of aliens at Guantanamo. App.

76a-78a.

Judge Brown wrote a separate concurrence

criticizing the majority’s failure to apply ordinary

principles of statutory construction in reaching its

conclusion that Guantanamo detainees are not

“persons.” Judge Brown observed that the panel

majority’s ruling on the scope of RFRA left the Court

of Appeals, “with the unfortunate and quite dubious

distinction of being the only court to declare those

held at Guantanamo are not ‘person{s].’ This is a

most regrettable holding in a case where plaintiffs

have alleged high-level U.S. government officials

treated them as less than human.” App. 89a

(alteration in original).

On December 15, 2008, this Court granted

certiorari, vacated the judgment below, and

remanded the case to the Court of Appeals for

further consideration in light of the Court’s recent

decision reversing the Court of Appeals in

Boumediene. App. D. After supplemental briefing,

the Court of Appeals issued a new per curium

opinion on April 24, 2009. App. B. Despite this

Court’s express instructions that it consider the

effect of Boumediene, the Court of Appeals declined

to base its decision on whether its earlier rejection of

petitioners’ constitutional claims could withstand

analysis under Boumediene. App. 4a-8a. Although

the court expressed its view in dicta that

Boumediene was explicitly confined to habeas

corpus, the court announced that it would avoid

deciding the case based on any consideration of the

constitutional issue and instead would confine its

grounds for dismissal to qualified immunity. App.

8a-Ya. The court justified shifting its grounds for

decision and ignoring this Court’s mandate on the

authority of Pearson v. Callahan, 129 S. Ct. 808

(2009). App. 8a-9a.

REASONS FOR GRANTING THE PETITION

The sordid spectacle of American soldiers

torturing and humiliating captives at Abu Ghraib is

surpassed only by the revelation that = at

Guantanamo similar despicable practices were

conceived, authorized, and systematically

implemented by senior officials of the US.

government. The tragic irony that such inhumanity

could be perpetrated by American officials has

brought shame to our country, has disappointed and

angered our allies, and has emboldened our enemies.

The Court of Appeals’ decision compounds that harm

by holding that these leaders are immune from

having to account for their actions and reiterating,

albeit in dicta, that these plaintiffs have no right to

religious dignity or to be free from torture. It now

falls to this Ceart, the last haven for affirmation of

our constitutional order, to hold these officials

responsible and to affirm these fundamental rights.

Without doubt, this is an uncomfortable and

unwelcome task. Yet this Court has been a bulwark

in a series of cases that have refused to allow

Guantanamo to be left as an indelible rebuke to our

claim to be a beacon of freedom. This case presents

a unique and compelling opportunity for this Court

to affirm that torture at Guantanamo was a violation

of fundamental rights and to make clear to inferior

courts that its constitutional jurisprudence

regarding Guantanamo must be taken seriously.

Left in place, the Court of Appeals’ decision will be a

final assertion of judicial indifference in the face of

calculated torture and humiliation of Muslims in

their religion. The decision cannot stand.

[. THE COURT OF APPEALS

REBUFFED THIS COURT'S

MANDATE TO RECONSIDER THIS

CASE IN LIGHT OF BOUMEDIENE.

Despite this Court’s explicit direction to the

Court of Appeals to consider this Court’s intervening

decision in Boumediene in reevaluating petitioners’

claims, the Court of Appeals simply declined to do so.

Instead, the Court of Appeals decided the case on

remand on an alternative ground, namely that

petitioners claims are precluded by qualified

immunity. This disposition misapplies this Court’s

precedent and flouts its authority.

As an initial matter, the Court of Appeals

below ruled that this Court had already decided the

very issue it had framed on remand. According to

the Court of Appeals, since this Court confined its

holding in Boumediene to “the extraterritorial reach

of the Suspension Clause” and “disclaimed any

intention to disturb existing law” as to any other

constitutional provision, it was not open to the Court

of Appeals to apply the Boumediene analysis here.

App. 6a-7a. The court further concluded that it was

beyond its power to determine whether Boumediene

has “eroded the precedential force of Eisentrager and

its progeny” on which it had earlier based its opinion

that petitioners have no constitutional rights. App.

Ta.

In short, the Court of Appcals viewed itself as

precluded by this Court’s precedent from doing

precisely what this Court directed it to do. Plainly,

this Court was fully aware that Boumediene dealt

with habeas corpus, but it nonetheless directed the

Court of Appeals to examine how Boumedtiene

affected the analysis here, where habeas is not in

issue. Yet this appears not to have entered the

Court of Appeals’ calculus. Nor did the Court of

Appeals consider that this Court had itself declared

in Boumediene how the application of Eisentrager

and its progeny must be modified. This Court did

not leave it to the Court of Appeals to determine

whether Eisentrager’s authority had been eroded —

this Court had already clearly held that it had — but

directed it to consider how that erosion affected this

casc.

The Court of Appeals fur‘her sought to justify

its refusal to consider the impact of Boumediene on

petitiowers’ constitutional claims on grounds that

Pearson v. Callahan, 129 S. Ct. 808 (2009), allowed

it to avoid the constitutional issues and resolve the

case solely on immunity greunds. Yet Pearson did

not address the circumstance presented here —

where the court below had already ruled that no

constitutional right exicted and its decision was

vacated by this Court with explicit directions to

reconsider that very issue in light of more recent

authority. Moreover, even without regard to this

circumstance, Pearson would not support avoidance

of the constitutional issue here.

Pearson did not reverse the sequence

approved in Saucter v. Katz, 533 U.S. 194 (2001),

which required the courts to resolve the underlying

issue of whether the claimant’s constitutional rights

were violated before reaching the question whether

the defendant has qualified immunity. Pearson

merely held that the Saucier sequence is not “an

inflexible requirement” and the lower courts may

make a reasonable exercise of discretion to reverse it

in appropriate cases. 129 S. Ct. at 813. Pearson

nonetheless reaffirmed that the Saucier sequence “is

often appropriate” and “often beneficial,” and it

described the many circumstances that continue to

favor it, id. at 818, most of which are clearly

applicable here. Yet the Court of Appeals here

invoked Pearson as conferring unfettered authority

for avoiding any constitutional issue without giving

any consideration to the circumstances of the

particular case.

A genuine exercise of discretion requires

careful weighing of the competing considerations for

and against the alternative choices. E.g., Am.

Dredging Co. v. Miller, 510 U.S. 443, 455 (1994).

Dissenting in Schlup v. Delo, 513 U.S. 298 (1995),

Justice Scalia observed that an exercise of discretion

“may not be done without considering relevant

factors and giving a ‘justifying reason.” Jd. at 348.

Yet here, the court below made no pretense of

considering whether the specific circumstances of

the instant case favored avoidance of the

constitutional issue by addressing immunity first.

This is the antithesis of the analysis required by

Pearson.

None of the concerns set out in Pearson that

might counsel against reaching the constitutional

issue is present here. This is not a case in which the

issue “is so fact-bound that the decision provides

little guidance for future cases;” it 1s not a case

where the issue is otherwise pending before a higher

court or where it rests on an “uncertain

interpretation of state law;” and it is not a case,

petitioners submit, where the arguments are poorly

presented. Pearson, 129 S. Ct. at 819-20. Instead,

this is precisely the type of case which Pearson itself

recognized should follow the Saucier sequence.

As the Pearson Court observed, the Saucier

two-step procedure reyuiring resolution of the

constitution] issue first “is especially valuable with

respect to questions that do not frequently arise in

cases in which a qualified immunity defense is

unavailable.” Jd. at 818. Here, recognition of the

constitutional right of Guantanamo detainees to be

free from torture at the hands of government

officials is largely, if not entirely, “dependent on

cases in which the defendant may seek qualified

immunity.” Jd. at 821-22. This is not a case like the

ones identified by this Court in Pearson where the

constitutional issue is likely otherwise to be

presented in a criminal action, a suit against a

municipality, or an action for injunctive relief. If

courts are allowed to follow the path set by the Court

of Appeals, there may never be a proper occasion for

recognizing the constitutional right at issue here

because qualified immunity will almost invariably be

in issue. The principle that there is a constitutional

right for detainees not to be tortured thus will likely

never be addressed. This is reason enough alone for

granting the writ.

Il. THE COURT OF APPEALS’

DECISION THAT PETITIONERS

ARE NOT “PERSONS” FOR

PURPOSES OF THE RELIGIOUS

FREEDOM RESTORATION ACT

MISAPPLIES THAT STATUTE AND

CONTRAVENES LONGSTANDING

SUPREME COURT AUTHORITY

REAFFIRMED IN BOUMEDIENE.

RFRA provides a cause of action to any

“person” whose religious exercise has been

substantially burdened by the government. App.

176a (42 U.S.C. § 2000bb-1(c)). It precludes the

government or any of its officers from infringing on a

person's exercise of religion, unless the restriction 1s

the “least restrictive means of furthering [al]

compelling governmental interest.” App. 175a (42

U.S.C. § 2000bb-1(b)(2)). As the district court

recognized, RFRA on its face provides a cause of

action for petitioners in the circumstances presented

here. The complaint alleged that respondents

deliberately infringed on petitioners’ religious

exercise by, inter alia, interfering with their prayer,

shaving their beards, forcing nudity, and desecrating

their Korans. App. 205a, 224a, 241a.

In its initial decision, the Court of Appeals

rejected the district courts = straightforward

application of RFRA. Instead, it held that, because

Guantanamo detainees have no_ constitutional

rights, they also have no rights under RFRA. On

remand, the court reaffirmed this position in only

shghtly modified form. It held that, because

Guantanamo detainees have no constitutional rights

other than the right of habeas corpus recognized in

Boumediene, they also have no rights under RFRA.

This decision was manifestly wrong for two

independent reasons.

First, the court’s decision on remand is in

sharp conflict with this Court’s authority on

statutory construction. In Rasul I, this Court dealt

with a virtually identical instance of statutory

construction — the question whether the habeas

Statute applied at Guatanamo. Like RFRA, the

habeas statute has a constitutional analog, and thus

the Court was faced. as it is here, with the question

whether the statute should be read to be co-

extensive with the constitutional provision. As the

Court expressly held in Rasul I with respect to the

application of the federal habeas statute to detention

of these petitioners:

Considering that [§ 2241] draws no

distinction between Americans and

aliens held in federal custody, there is

little reason to think that Congress

intended the geographical coverage of

the statute to vary depending on the

detainee’s citizenship. Aliens held at

the base, no less than American

citizens, are entitled to invoke the

federal courts’ authority under § 2241.

542 U.S. at 481 (footnote omitted). No less so here.

RFRA, like the habeas statute, draws no distinction

between citizens and aliens, and nothing in RFRA

Suggests any variance in its geographical reach

based on a plaintiff's citizenship.

By its express terms, RFRA protects all

“persons” from government interference with their

exercise of religion. As Judge Brown noted in her

concurrence, the majority’s construction of the term

“persons” to exclude petitioners contradicts the

“fundamental canon of statutory construction” that

“unless otherwise defined, words will be interpreted

as taking their ordinary, contemporary, common

meaning.” App. 83a. Where an unambiguous word

is undefined in a statute, it must be construed “in

accordance with its ordinary or natural meaning.”

FDIC v. Meyer, 510 U.S. 471, 476 (1994). Given its

“ordinary or natural meaning,” “person” is a broad

term that encompasses human beings regardless of

their place of residence or citizenship. Where

Congress intends to limit the term “person” by

citizenship or residence, it knows how to do so.

This Court has expressly instructed that

exceptions are not to be judicially implied into a

statute unless the absence of the exception would

lead to an absurd result. United States v.

Rutherford, 442 U.S. 544, 555 (1979). The Court of

Appeals ignored this instruction and, as it did in its

now-reversed decision in Rasul J, fashioned its own

Guantanamo exception to a statute that includes no

such condition or qualification.

The Court of Appeals’ ruling conflicts as well

with this Court’s construction of the scope of RFRA.

As this Court observed in City of Boerne v. Flores,

521 U.S. 507 (1997), RFRA’s “restrictions apply to

every agency and official .... [and] to all federal and

state law, statutory or otherwise.” Jd. at 532.

Contrary to the Court of Appeals’ conclusion, RFRA

was not enacted merely to be co-extensive with the

First Amendment, which would have made the

statute superfluous. Rather, it was enacted to

supplement the First Amendment by extending

protection to religious practices that this Court had

expressly held were not protected by the First

Amendment. App. 173a-74a (42 U.S.C. § 2000bb);

see S. Rep. 103-111, at 4, as reprinted in 1993

U.S.C.C.A.N. at 1893. Prior to the passage of RFRA,

this Court had held that the First Amendment did

not protect the religious practice of using illegal

drugs against the effect of a law of neutral

application, Employment Div. Dep't of Human

Resources of Or. v. Smith, 494 U.S. 872 (1990), that

it did not protect the rights of military officers to

wear yarmulkes while in uniform, Goldman vu.

Weinberger, 475 U.S. 503 (1986), and that it did not

protect the rights of Muslim prisoners to attend

Friday services, O’Lone v. Estate of Shabazz, 182

U.S. 342 (1987). With its deliberately broad and

unconditional language, RFRA protects these and

many other practices. It applies in prisons; it

applies to the military; it applies to all government

officers wherever situated; it applies to all territories

and possessions of the United States. And,

petitioners submit, it applies in any sctting where

the government exercises unchallenged authority

and control. Far from simply duplicating

constitutional protections, RFRA expressly

supplements and extends protection beyond the

scope of the First Amendment.®

The language of the statute iterates the broad

purpose “to provide a claim or defense to persons

whose religious exercise is substantially burdened by

government.” App. 175a (42 U.S.C. § 2000bb(b)(2)).

The Court of Appeals’ conclusion that RFRA “did not

expand the scope of the exercise of religion beyond

that encompassed by the First Amendment,” App.

73a, 1s thus demonstrably incorrect and entirely at

odds with the purpose, effect, and express language

of RFRA.

But the decision below is wrong for a second,

far more troubling, reason. Having wrongly

concluded that RFRA _ wmerely' codifies’' the

Constitution, the Court of Appeals then compounded

its error by limiting RFRA’s meaning based on its

5 This construction of RFRA has been adopted by the Umited

States, which has urged it in this Court. See Brief of the

United States as Amicus Curiae, City of Boerne v. Flores, 1997

U.S. S. Ct. Briefs LEXIS 185, at *70, 71 n.40 (Jan. 10, 1997)

(citing cases).

incorrect (and now overruled) construction of Fourth

and Fifth Amendment jurisprudence. Based on its

own decision in Boumediene, in its initial decision

here the Court of Appeals had held that, because

nonresident aliens are not “persons” under the

Fourth or Fifth Amendments, they have no statutory

rignts under RFRA. App. 78a. On remand, while,

on the one hand, declaring that it would not decide

the predicate constitutional issue, the Court of

Appeals, on the other hand, reaffirmed its earlier

construction of RFRA which turned precisely on its

now-vacated holding that detainees at Guantanamo

have no constitutional rights.

As this Court stated in Rasul TJ, and

reaffirmed in reversing Boumediene, the Court of

Appeals was plainly wrong in holding categorically

that Guantanamo detainees have no enforceable

constitutional rights. In Boumediene, this Court

grounded the recognition of those rights’ in

longstanding jurisprudence beginning with the

Insular Cases, e.g., De Lima v. Bidwell, 182 U.S. 1

(1901); Dorr v. United States, 195 U.S. 138 (1904),

and their progeny, which more than a century ago

had determined that the applicability of a

constitutional provision outside the sovereign

territory of the United States “depends upon the

particular circumstances, the practical necessities,

and the possible alternatives which Congress had

before it and, in particular, whether judicial

enforcement of the provision would be impracticable

and anomalous.” Boumecdiene, 128 S. Ct. at 2255

(anternal quotations omitted). Reaffirming its prior

holding in Rasul J, this Court again ruled that the

constitutional right to habeas corpus applies at

‘ ) |

Guantanamo because it is under the government's

“complete and total control.” Jd. at 2262.

Had the Court of Appeals honored this Court's

mandate to reconsider its earlier decision in light of

Boumediene, this would have exposed the false

premise on which the court had construed the

meaning of “persons” in the RFRA statute. In its

initial decision, the Court of Appeals’ syllogism was

that “persons” must be confined to those who enjoy

constitutional rights and cannot include aliens at

Guantanamo because, under the court’s premise,

they categorically have no such rights. In its

decision on remand, the Court of Appeals concluded

that Boumediene’s recognition of Guantanamo

detainees’ constitutional right of habeas was limited

to that single right and refused to examine whether

Boumediene’s analytical basis undercuts the court's

categorical premise. Plainly it does. Like habeas

corpus, the right to be free from official religious

abuse at Guantanamo would certainly not be

“impracticable and anomalous.” Jd. at 2255.

Certiorarl is warranted here not simply

because a lower court fundamentally misconstrued a

statute. Rather, the Court of Appeals has, once

again, directly and obdurately in conflict with this

Court's jurisprudence, rejected the proposition that

detainees have even the most basic of rights and

concluded that government action at Guantanamo is

subject to no constitutional constraints 9 or

accountability.

Since detentions at Guantanamo commenced

in 2002, the Court of Appeals has been faced with

several cases asserting rights on behalf of detainees

[In each instance, the Court of Appeals has held that

detainees do not possess the right being asserted

E..g., Al Odah v. United States, 321 F.3d 1134 (D.C

Cir. 2003); Hamdan v. Rumsfeld, 415 F.3d 33 (D.C.

Cir. 2005); Boumediene, 476 F.3d 981. On certiorari,

this Court has reversed each of those decisions and

affirmed that the detainees possess cognizable rights

under the laws of the United States and under the

Constitution. Rasul J, 542 U.S. at 473; Hamdan v.

Rumsfeld, 548 U.S. 557, 625-26 (2006); Boumediene,

128 S. Ct. at 2262. Nevertheless, despite these

rulings and this Court’s explicit instruction to

reconsider its stance in this case, the Court of

Appeals ignored both the principles of statutory

construction that should have resolved this case in

petitioners’ favor and the clear line of this Court’s

jurisprudence rejecting the Court of Appeals’ blanket

repudiation of detainee rights Petitioners

respectfully submit that an unequivocal affirmation

of this Court’s Guantanamo jurisprudence — and its

unequivocal application to the fundamental rights to

be free from torture and religious abuse — is a critical

reason for the Court to grant review in this case.

Petitioners further submit that a holding that

Guantanamo detainees are not “persons” cannot be

left in place

Ill. PRISONERS IN U.S. CUSTODY AT

GUANTANAMO HAVE A

CONSTITUTIONAL RIGHT NOT

TO BE TORTURED, AND

OFFICIALS WHO VIOLATE THAT

RIGHT ARE NOT ENTITLED TO

QUALIFIED IMMUNITY.

Whatever euphemisms are applied, whatever

abstractions are invoked, petitioners were

deliberately tortured at the behest and direction of

the former Secretary of Defense and senior officers

in the chain of command. Respondents conceived

and implemented their program of torture and abuse

in violation of the express policy statements of the

President, applicable military regulations, the

Constitution, U.S. and international law, and any

pretense of honor or decency. Not only should

respondents (or any reasonable officers serving in

respondents’ positions) have known of the ulegality

of their conduct, the complaint is replete with

allegations that respondents in fact did know. They

requested, wrote, and received memorandum after

memorandum, all detailing the various ways in

which their conduct and orders were violations of

applicable law. App. 186a-90a. It was for this very

reason that each report or memorandum tried to

concoct a post hoc basis for immunity for

respondents’ unconstitutional and illegal acts.

in its initial decision, the Court of Appeals

held that petitioners have no constitutional right to

be free of torture inflicted by government officers. In

its decision on remand, the court avoided the

question whether Boumediene undercuts its earler

thesis and ruled that in any event the right not to be

tortured was not. clearly established when

petitioners were detained. This Court should make

clear that officials cannot take refuge in

constitutional ignorance or purported ambiguity

when they are attempting to evade rather than

comply with the law.

In Boumediene, this Court rejected the Court

of Appeals’ categorical conclusion that the

Constitution stops at the water's edge and made

clear that its holding was rooted in over a century of

jurisprudence. On remand here, while purporting to

eschew a definitive ruling on the constitutionality of

torture at Guantanamo, the Court of Appeals did not

hesitate to announce its view that Boumediene is

limited to the Suspension Clause and has no

applicability to other constitutional rights. The

court below thereby not only’ disregarded

Boumediene’s underlying analysis and the historical

precedent on which it was explicitly based, but

ignored this Court’s express statement that, like the

rights guaranteed under the Suspension Clause, “the

substantive guarantees of the Fifth and Fourteenth

Amendments” apply to foreign nationals, lke

petitioners, “who have the privilege of litigating in

our courts.” 128 S. Ct. at 2246. Indeed, in reaching

its conclusion, the Court of Appeals disregarded its

own previous decision in Boumediene, which

recognized that there is no principled distinction

between the right to habeas corpus guaranteed

under: the Suspension Clause and other rights

guaranteed under the Constitution. As the Court of

Appeals observed:

[T]he dissent offers the

distinction that the Suspension Clause

is a limitation on congressional power

rather than a constitutional right. But

this is no- distinction at _ all.

Coustitutional rights are rights against

the government and, as such, are

restrictions on governmental power.

Consider the First Amendment.... Like

the Suspension Clause, the First

Amendment is framed as a limitation

on Congress: “Congress shall make no

law....” Yet no one would deny that the

First Amendment protects the rights to

free speech and religion and

assembly.... There is the notion that the

Suspension Clause is different from the

Fourth, Fifth, and Sixth Amendments

because it does not mention individuals

and those amendments do (respectively,

“people,” “person,” and “the accused”)....

That cannot be right.

476 F.3d at 993 (internal citations omitted). Thus,

the Court of Appeals accepted in Boumediene that

habeas rights could not be segregated from other

fundamental rights; this Court’s decision in

Boumediene should have made _ analyticaily

impossible the Court of Appeals’ result-driven

holding in the remand of this case.

In view of the Court of Appeals disregard for

Boumediene, it is critical that this Court not just

vacate but strongly reject the Court of Appeals’

earlier contrary ruling, to which it continued to

adhere on remand, that respondents’ conduct at

Guantanamo was not constrained by the

Constitution and, accordingly, that they were free to

torture and abuse petitioners without risk of

personal liability.

A. Any Reasonable Officer

Would Know that Torture

and Deliberate Abuse Are

Illegal Under All Sources of

Law.

The Constitution prohibits torture by

government officials of persons in government

custody wherever they may be held. The principle

that government officials cannot torture prisoners is

not new. As long ago as 1936, this Court considered

whether the right not to be tortured was

“fundamental” for the purpose of imposing it on the

States under the Due Process Clause of the

Fourteenth Amendment. Brown v. Mississippi, 297

U.S. 278 (1936). In that case, the Court held that

torture is inconsistent with the “fundamental

principles of liberty and justice which he at the base

of all our civil and political insvitutions.” Jd. at 286

(quoting Hebert v. Louisiana, 272 U.S. 312, 316

(1926)). Thus, the right not to be tortured was

protected by the Fourteenth Amendment, and

torture was banned as a matter of state as well as

federal practice.

Torture 1s also “universally condemned” under

international law. Sosa v. Alvarez Machain, 542

U.S. 692, 762 (2004) (Breyer, J., concurring). U.S.

courts have recognized for more than twenty-five

years that no foreign sovereign has the authority to

order torture. In Filartiga v. Pena-Irala, 630 F.2d

876 (2d Cir. 1980), cited with approval by this Court

in Sosa, 542 U.S. at 738 n.29, the Second Circuit

held that “there are few, if any, issues in

international law today on which opinion seems to be

so united as the limitations on a state’s power to

torture persons held in its custody.” 630 F.2d at 881.

“(FJor purposes of civil liability, the torturer has

become like the pirate and slave trader before him

hostis humani generis, an enemy of all mankind.”

Id. at 890.

The United States ts a signatory to the

Convention Against Torture. 2 U.S. Dep’t of State,

Treaties in Force at 182 (2007), available at

http://www.state.gov/documents/organization/89668.

pdf. The U.S. government has repeatedly, officially,

and publicly condemned torture in any and all

circumstances and acknowledged that:

* the prohibition on torture applies to the

U.S. military;

* “{tjorture cannot be _ justified by

exceptional circumstances, nor can it be

excused on the basis of an order from a

superior officer’; and

* “a commanding officer who orders such

punishment would be acting outside the

scope of his or her position and would

be individually liable for the

intentional intliction of bodily and

emotional harm.”

Initial Report of the United States to the United

Nations’ Committee Against Torture (Oct. 15, 1999),

App. 246a, 249a (emphasis added).

The U.S. government could not have been

more clear in articulating the scope and nature of its

own obligations:

The United States 1s

unequivocally opposed to the use and

practice of torture. No circumstances

whatsoever, including war, the threat of

war, internal political instability, public

emergency, or an order from a superior

officer or public authority, may be

invoked as a justification for or defense

to committing torture. This is a

longstanding commitment of the United

States, repeatedly reaffirmed at the

highest levels of the USS.

Government.... All components of the

United States Government are

obligated to act in compliance with the

law, including all United States

constitutional, statutory and_ treaty

obligations relating to torture and

cruel, inhuman or degrading treatment

or punishment. The U.S. Government

does not permit, tolerate or condone

torture, or other unlawful practices, by

its personnel or employees under any

circumstances. U.S. laws prohibiting

such practices apply both when the

employees are operating in the United

States and in other parts of the world.

Second Periodic Report of the United States to the

United Nations Committee Against Torture (May 6,

2005), App. 255a-56a (emphasis added).

The prohibition against torture is not only

deeply embedded as a matter of policy and

customary international law, it is a bedrock norm of

constitutional law. As the Court noted in Brown,

torture “offends some principle of justice so rooted in

the traditions and conscience of our people as to be

ranked as fundamental.” 297 U.S. at 285 (quoting

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

From the Insular Cases to United States v.

Verdugo-Urquidez, 494 U.S. 259, 277-78 (1990)

(Kennedy, J. concurring), to Rasul I, to Boumediene,

this Court has for more than a century adopted a

functional analysis of what constitutional rights may

be applied outside the United States. That analysis

has never been premised on rigid territorial lines but

on the concept that “fundamental” rights apply

where they can practicably be enforced. And as

Brown teaches, few if any rights are more

“fundamental” than the right of a prisoner not to be

tortured. As Justice Scalia recognized in his dissent

in Zadvuydas v. Davis, 533 U.S. 678 (2001), a case

decided the year before petitioners were sent to

Guantanamo, this norm is so obvious that, even in

the case of aliens who may be entitled to only

minimal constitutional protection, it 1s certain that

“they cannot be tortured.” Jd. at 704 (Scalia, J.

dissenting). In sum, it has been long established

that there is an irreducible constitutional minimum

that government officials owe to human _ beings

under their control — whether citizens or aliens and

wherever that control is exercised — and that

minimum necessarily includes the prohibition of

torture.

This Court’s decision in Boumediene reaffirms

the principle that the Constitution’s reach is not

measured by geography but by the practicality of

enforcing its provisions wherever the government

exercises power and control. The test is not whether

petitioners have “property or presence” within the

United States, but whether enforcement of the

Constitution where the petitioner is located would be

“impractical or anomalous.” Particularly pertinent

here, the Supreme Court unequivocally rejected any

construction of Eisentrager as having “adopted a

formalistic, sovereignty-based test for determining

the reach of the Suspension Clause,” because it

would represent “a complete repudiation” of the

“functional approach” taken in the Insular Cases and

Reid v. Covert, 354 U.S. 1 (1957). Boumediene, 128

S. Ct. at 2257-58. The Court characterized the

constricted reading of Eisentrager adopted by the

Court of Appeals as overlooking the “common thread

uniting the Insular Cases, Hisentrager and Reid: the

idea that questions of extraterritoriality turn on

objective factors and _ practical concerns, not

formalism.” Jd. at 2258.

As a result, the Supreme Court reaffirmed its

hoiding in Rasul J that Guantanamo is for all

practical purposes U.S. territory and detainees

should be treated accordingly. It elaborated a

functional test, according protection of fundamental

constitutional rights to detainees as long as the

extension of these rights was not “impracticable or

anomalous.” Importantly, it viewed the issue of

detainee rights as one of separation of powers and

rejected the idea that the executive branch could

create a legal black hole where the government could

act without constitutional constraint or reasonable

judicial oversight:

The Constitution grants Congress and

the President the power to acquire,

dispose of, and govern territory, not the

power to decide when and where its

terms apply. Even when the United

States acts outside its borders, its

powers are not “absolute and unlimited”

but are subject “to such restrictions as

are expressed in the Constitution.”

Abstaining from questions involving

formal sovereignty and_ territorial

governance is one thing. To hold the

political branches have the power to

switch the Constitution on or off at will

is quite another.

Id. at 2259 (anternal citations omitted).

On remand, the Court of Appeals, in disregard

of this Court’s direction, refused to reexamine

whether petitioners have a constitutional right to be

free from government-inflicted torture in light of this

Court’s decision in Boumediene, but the court made

it abundantly clear that it continued to adhere to a

territorial view, that the Constitution precludes

recognition of any constitutional rights of these

detainees save the right of habeas corpus. Stated

simply, this is not a_ permissible reading of

Boumediene; it 1s an unwillingness to accept its

premises. This Court should not allow this decision

to stand as the last judicial word on torture at

Guantanamo. Nor can such an obdurate reading of

precedent supply a safe harbor for government

officials that knowingly ordered torture.

B. The Court Should Make Clear

that Government Officials

Who Order Torture Are Not

Entitled to Qualified

Immunity.

Equally important to the condemnation of

government-inflicted torture wherever it occurs is

the repudiation of the use of qualified immunity to

insulate misconduct that respondents knew was

legally wrong and morally reprehensible on the

pretext that they did not know it was also

unconstitutional. At its core, qualified immunity

must rest on a genuine good faith belief that the

conduct being challenged was not wrongful. This

case presents the Court with the opportunity to

make clear that qualified immunity cannot be used

as a stratagem to enable government officials to

create a lawless enclave where they can knowingly

engage in despicable practices with impunity.

Respondents knew, as any civilized person

would know, and as their own duties of high

government office and military command require,

that torture and deliberate abuse are wrong and

violate fundamental rights wherever they occur.

They brought detainees to Guantanamo rather than

to a detention facility within our borders in a

calculated attempt to circumvent the constitutional

provisions that forbid torture. Their memos

evidence, however, that they were aware that every

source of controlling law, including U.S. criminal law

and the Uniform Code of Military Justice, expressly

prohibited torture and did apply at Guantanamo,

that the conduct they were contemplating was

“otherwise criminal,” and that they were seeking

post hoc rationalizations and concocted defenses that

would somehow render lawful that which was

plainly unlawful. App. 188a-89a. Respondents’

gamble that Guantanamo might be recognized as a

haven for torture — where torture was concededly

illegal but possibly not unconstitutional — is not the

kind of conduct that the doctrine of qualified

immunity is intended to protect.

The Court of Appeals relied on the absence of

any constitutional ruling directly on point that

prohibits torture at Guantanamo. But this Court

has made clear that the lack of a directly applicable

precedent dves not insulate egregious conduct. In

Anderson v. Creighton, 483 U.S. 635 (1987), the

Court unambiguously rejected the proposition that

“an official action is protected by qualified immunity

unless the very action in question has previously

been held unlawful.” Jd. at 640. For a right to be

clearly established, it is enough that “the contours of

the right” are “sufficiently clear that a reasonable

official would understand that what he is doing

violates that right. ... [I]n the light of pre-existing

law, the unlawfulness must be apparent.’ /d. There

can be no doubt that the unlawfulness of torture and

abuse was clear to the Secretary of Defense and

senior military officers.

In Hope vu. Pelzer, 536 U.S. 730 (2002), prison

guards shackled prisoners to a hitching post on a hot

day, conduct very similar to the “short-shackling” of

petitioners here. App. 217a. In Hope, the guards

defended the claims against them on the ground that

no decision had established that the Constitution

prohibited the practice. The Court held that the

“obvious cruelty inherent” in the use of the hitching

post and treatment “antithetical to human dignity...

under circumstances that were both degrading and

dangerous” were sufficient to put the guards on

notice of a constitutional violation. 536 U.S. at 745.

In so ruling, the Court noted that defendants

knowingly vioiated their own regulations, which

further put defendants on notice and precluded their

reliance on qualified immunity. The fact that the

specific practice had never been addressed by the

courts did not afford the defendants in Hope an

escape into qualified immunity. That respondents in

this action are senior government officials rather

than prison guards in no way changes the analysis;

if anything, it should apply with greater force here.

Similarly, in United States v. Lanier, 520 U.S.

259 (1997), a state court judge was charged with

criminal constitutional violations pursuant to 18

U.S.C. § 242. Lanier argued that he was not on

notice that the Constitution was implicated in his

criminal conduct — sexual assault of five women who

worked in the courthouse — even though he was

aware that state criminal statutes prohibited such

behavior. In essence, his position was that although

he knew his conduct was wrongful, and even illegal,

he could not have known it was a constitutional

infraction because there was no precedent on point.

This Court summarily rejected Lanier’s defense

because the illegality of his conduct, if not its

unconstitutionality, was obvious. Analogizing

Laniers due process defense to an assertion of

qualified immunity, the Court stated, “[t]he easiest

cases don’t even arise. There has never been...[a]

case accusing welfare officials of selling foster

children into slavery; it does not follow that if such a

case arose, the officials would be immune from

damages for criminal] liability.” 520 U.S. at 271

(internal citations and quotations omitted)

(alteration in original). The teaching of Lanier is

clear: the torturer, the “hostis human generis, an

enemy of all mankind,” like the hypothetical child

slaver in Lanier, cannot rely on the absence of a case

on point.

Like the defendant in Lanier, the Court of

Appeals approached the question of qualified

immunity here with a single, narrow question — was

there a case holding that torture at Guantanamo

violated specific provisions of the Constitution”?

Because the court answered this question in the

negative, it held that respondents could not be held

liable, regardless of the illegality of their conduct

under other applicable laws. This is precisely the

approach that this Court rejected in evaluating

Lanier’s substantive due process defense. If the

Court of Appeals had applied the standard

enunciated in Lanier, which would have required it

to accept that, irrespective of a _ constitutional

precedent on point, any reasonable officer would

know that torture was prohibited by every other

source of law, it would have rejected respondents’

qualified immunity defense

While the standard is an objective one, good

faith remains at the heart of qualified immunity;

indeed, the terms qualified immunity and “good

faith” immunity are often used interchangeably. See

Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Such

immunity is not intended to protect defendants who

engage in deliberately unlawful conduct. Malley v.

Briggs, 475 U.S. 335, 341 (1986). As the Court made

clear in Harlow: “By defining the limits of qualified

immunity essentially in objective terms, we provide

no license to lawless conduct.” 457 U.S. at 819. Yet

a license for lawless conduct — a license to torture,

abuse, and humiliate — is precisely what respondents

sought at Guantanamo. In granting review, this

Court has the opportunity definitively to revoke that

“license,” extend a minimum guarantee of dignity

and decency to the hundreds who remain in

detention at Guantanamo, and reaffirm to the world

that this nation will not excuse torture by our own

officials while condemning it by others.

Respondents selected Guantanamo as

petitioners’ detention facility in a cynical attempt to

avoid accountability for conduct that had long been

held unconstitutional when it occurred in US.

prisons. But Guantanamo is not a Hobbesian

enclave where respondents could violate clear

prohibitions on their conduct imposed by statute and

regulations and then point to «a _ purported

constitutional void as a basis for immunity. It is of

critical importance that this Court strongly affirm

that torture is unequivocally beyond the pale for

officials of the United States, wherever they may be

operating.

CONCLUSION

For the foregoing reasons, petitioners

respectfully request that this Court grant the

petition for writ of certiorari.

Respectfully submitted,

/s/

MICHAEL RATNER ERIc L. LEWIS

SHAYANA KADIDAL Counsel of Record

CENTER FOR BAACH ROBINSON &

CONSTITUTIONAL RIGHTS LEWIS PLLC

666 Broadway, 7th Floor 1201 F Street, NW

New York, New York 10012 Suite 500

(212) 614-6438 Washington, DC 20004

(202) 833-8900

Counsels for Petitioners

August 24, 2009

APPENDIX A- ENTERED Apnil 24, 2009

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 06-5209 September Term 2008

04cv01864

Filed On: April 24, 2009

Shafiq Rasul, et al.,

Appellants

Richard Myers, Air Force General, et al.,

Appellees

Consolidated with 06-5222

BEFORE: Henderson and Brown, Circuit

Judges, and Randolph, Senior

Circuit Judge

It is ORDERED, on the court’s own motion,

that the judgment of this court filed January 11,

2008, be reinstated, in accordance with the opinion

filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /#/

Michael C. McGrail

Deputy Clerk

APPENDIX B— ENTERED April 24, 2009

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2007 Decided April 24, 2009

No. 06-5209

SHAFIQ RASUL, ET AL.,

APPELLANTS/CROSS-APPELLEES

RICHARD MYERS, AIR FORCE GENERAL, ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with

06-5222

On Remand from the United States Supreme Court

Eric L. Lewis, A. Katherine Toomey, Michael

Ratner, and Shayana Kadidal were on_ the

supplemental briets for appellants/cross-appellees.

Michael F. Hertz, Acting Assistant Attorney

General, and Robert M. Loeb and Matthew M.

Collette, Attorneys, were on the suppiemental briefs

for appellees/cross-appellants.

Before: HENDERSON and BROWN, Circuit

Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge

BROWN.

PER CURIAM: The Supreme Court vacated our

decision in Rasul v. Myers, 512 F.3d 644 (D.C. Cir.

2008) (Rasul J), and remanded the case for further

consideration in light of Boumediene v. Bush, 128 S.

Ct. 2229 (2008). Rasul v. Myers, 129 S. Ct. 763

(2008). We do not believe Boumediene changes the

outcome in Rasul If. We therefore reinstate our

judgment, but on a more limited basis.

We have before us four British nationals who

brought an action alleging that they were illegally

detained and mistreated at the United States Naval

Base at Guantanamo Bay, Cuba, from 2002 until

their release in 2004. They named as defendants

former Secretary of Defense Donald Rumsfeld and

ten senior U.S. military officials. The complaint was

in seven counts. Counts 1, 2, and 3 invoked federal

jurisdiction under the Alien Tort Statute, 28 U.S.C. §

1350, and alleged violations of international law.

Count 4 alleged violations of unspecified provisions

of the Geneva Convention. Counts 5 and 6 asserted

Bivens claims for violations of the Fifth and Eighth

Amendments to the Constitution. See Bivens v. Six

Unknown Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971). Count 7 alleged a violation of the

Religious Freedom Restcration Act (RFRA), 42

U.S.C. §§ 2000bb et seq.

We affirmed the district court’s dismissal of

Counts 1 to 4 and Counts 5 and 6 and reversed its

denial of the motion to dismiss Count 7. Rasul I, 512

F.3d at 672. We agreed that the district court had no

jurisdiction over Counts 1 to 4.! As to Counts 5 and

6, we ruled against plaintiffs on the merits and held,

in the alternative, that even if plaintiffs had rights

under the Due Process Clause and the Cruel and

Unusual Punishment Clause and even if those rights

had been violated, qualified immunity shields the

defendants because the asserted rights were not

clearly established at the time of plaintiffs’

detention. Jd. at 665—67. As to Count 7, we held that

plaintiffs were not among the protected “person|[s]”

for whom FE. FRA, 42 U.S.C. § 2000bb-1(a)—(b), creates

a private right of action to remedy unjustifiable

government burdens on the exercise of religion. Id.

at 672.

1 We explained that the Westfall Act makes the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 2679 et seq., the exclusive

remedy for any damages action for torts committed by a federal

official “while acting within the scope of his office or

employment.” 28 U.S.C. § 2679{b)(1). The Alen Tort Statute

and Geneva Convention claims in Counts 1 to 4 were premised

on alleged tortious conduct within the scope of defendant’s

employment. Rasul J, 512 F.3d at 660, 663. Since plaintiffs

tailed to exhaust their administrative remedies as required by

the FTCA, see McNeil v. United States, 508 U.S. 106, 113

(1993), the district court lacked jwrisdiction over counts 1 to 4.

Plaintiffs do not attempt to show how

Boumediene bears on Counts 1 to 4, and we can see

nothing in the Supreme Court’s decision that could

possibly affect our disposition of those Counts. We

shall therefore reinstate our judgment on Counts 1

to 4. With respect to the remaining three Counts,

plaintiffs argue that Boumediene vitiates our

analysis. The gist of their argument is_ that

Boumediene prescribes a multi-factor, “functional”

test to determine whether aliens in their

predicament can invoke constitutional rights, and

that the rights they assert pass the test. By

extension, they argue that if RFRA murrors a

previous version of the constitutional right of free

exercise, then the same functional approach governs

RFRA’s extraterritorial reach

The main question in Boumediene was

whether a provision in the Military Commissions

Act, Pub. L. No. 109-366, 120 Stat. 2600 (200G)

fcodined in part at 28 U.S.C. § 2241 & note),

depriving federal courts of habeas corpus jurisdiction

over petitions filed by Guantanamo detainees,

violated the clause of the Constitution governing

suspension of the writ, ART. 1, § 9, cl. 2. 128S. Ct. at

2237. Holding that the Suspension Clause extended

to Guanta. ui0, the Court struck down the

jurisdiction-stripping provision of the Military

Commissions Act as an unconstitutional suspension

of the writ. Jd. The Court acknowledged that it had

never before determined that the Constitution

protected aliens detained abroad, id. at 2262, and

explicitly confined its constitutional holding “only” to

the extraterritorial reach of the Suspension Clause,

id. at 2275. The Court stressed that its decision

“does not address the content of the law that governs

petitioners’ detention.” Jd. at 2277 (emphasis added).

With those words, the Court in Boumediene

disclaimed any intention to disturb existing law

governing the extraterritorial reach of any

constitutional provisions, other than the Suspension

Clause. See, e.g., Johnson v. Eisentrager, 339 U.S.

763 (1950) (holding that aliens detained on a U.S.

military base outside sovereign U.S. territory have

no due process rights); United States v. Verdugo-

Urquidez, 494 U.S. 259 (1990) (holding that the

Fourth Amendment does not protect nonresident

aliens against unreasonable searches or seizures

conducted outside sovereign U.S. territory); Pauling

v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960);

People’s Mojahedin Org. of Iran v. U.S. Dep't of

State, 182 F.3d 17, 22 (D.C. Cir. 1999); see also

Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir.

2009) (holding that alien detainees at Guantanamo

cannot invoke the Due Process Clause).

Plaintiffs nevertheless maintain that

Boumediene has eroded the precedential force of

Eisentrager and its progeny. Whether that is so is

not for us to determine; the Court has reminded the

lower federal courts that it alone retains the

authority to overrule its precedents. See Rodriguez

de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989). A panel of this court is unde~

another constraint: we must adhere to the law of our

circuit unless that law conflicts with a decision of the

Supreme Court. See LaShawn A. v. Barry, 87 F.3d

1389, 1395 (D.C. Cir. 1996) (en banc).

There is another reason why we should not

decide whether Boumediene portends application of

the Due Process Clause and the Cruel and Unusual

Punishment Clause to Guantanamo detainees — and

it is on this ground we will rest our decision on

remand. The doctrine of qualified immunity shields

government officials from civil liability to the extent

their alleged misconduct “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). Our

initial opinion followed the requirement of Saucier v.

Katz, 533 U.S. 194 (2001), that courts must first

determine whecher the aileged facts make out a

violation of a constitutional right; if the plaintiff

satisfies this first step, then the court must

determine whether the asserted right was “clearly

established” at the time of the violation. Jd. at 201.

After our initial decision, the Supreme Court handed

down Pearson v. Callahan, 129 S.Ct. 808 (2009).

Pearson ruled that the Saucier sequence is optional

and that lower federal courts have the discretion to

decide only the more narrow “clearly established”

issue “in hight of the circumstances in the particular

case at hand.” Jd. at 818.

Considerations of judicial restraint favor

exercising the Pearson option with regard to

plaintiffs’ Bivens claims in Counts 5 and 6. The

immunity question is one that we can “rather

quickly and easily decide,” Pearson, 129 S. Ct. at 820

-- and already have. See Rasul I, 512 F.3d 665-67.

We thus follow the “older, wiser judicial counsel ‘not

to pass on questions of constitutionality ... unless

such adjudication is unavoidable.” Pearson, 129

S.Ct. at 821 (quoting Scott v. Harris, 550 U.S. 372,

388 (2007) (Breyer, J., concurring) (quoting Spector

Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105

(1944))). In view of Saucier, constitutional

adjudication was “unavoidable” when we rendered

our initial decision, but given Pearson that is no

longer true.

Our vacated opinion explained why qualified

immunity insulates the defendants from plaintiffs’

Bivens claims. Rasul J, 512 F.3d at 665-67.

Boumediene does not affect what we wrote. No

reasonable government official would have been on

notice that plaintiffs had any Fifth Amendment or

Eighth Amendment rights. Jd. at 666. At the time of

their 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.

The Court in Boumediene recognized just that: “It is

true that before today the Court has never held that

noncitizens detained by our Government in territory

over which another country maintains de jure

2 All four plaintiffs were released more than four years

before the Supreme Court decided Boumediene, and months

before the Court held even that statutory habeas corpus

jurisdiction extended to Guantanamo. See Rasul v. Bush, 542

U.S. 466, 483-84 (2004). We do not reqg'ure government

employees to anticipate future developments 1n constitutional

law. See Anderson v. Creighton, 483 U.S. 635, 639 (1987);

Butera v. District of Columbia, 235 F.3d 637, 652 (D.C. Cir

2001).

10a

sovereignty have any rights under our Constitution.”

128 S. Ct. at 2262.3

Eisentrager and Verdugo-Urquidez were

thought to be the controlling Supreme Court cases

on the Constitution’s application to aliens abroad.

Eisentrager rejected a habeas petition brought by

German nationals imprisoned at a United States

military base in Germany. 339 U.S. at 778. The

Court held that these alien prisoners, who “at no

relevant time were within any territory over which

the United States is sovereign,” were not entitled to

invoke the protection of the writ or the Fifth

Amendment. Jd. The Court referred nine times to

the decisive fact that the alien prisoners were, at all

relevant times, outside sovereign U.S. territory. See

id. at. 777-78.

3 We wrote in Rasul J that no one had reason to suppose

that Guantanamo was within the territorial sovereignty of the

United States. 512 F.3d at 666-67. The agreement giving the

Untied States an indefinite lease recognized that the lessor, the

Republic of Cuba, retained ultimate sovereignty. See

Agreement Between the United States and Cuba for the Lease

of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-

Cuba, T.S. No. 418, art. II]. The Supreme Court recognized this

in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948). See

also Immigration and Nationality Act, 8 U.S.C. § 1101(a)(38).

In fact, before Boumediene, it was clearly established that

“[w]ho is the sovereign, de jure or de facto, of a territory is not a

judicial, but is a political question, the determination of which

by the legislative and executive departments of any

government conclusively binds the judges .. . of that

government. Oe5ctjen v. Cent. Leather Co., 246 U.S. 297, 302

(1918) (quoting Jones v. United States, 137 U.S. 202, 212

(1890)); Vermilya-Brown, 335 U.S. at 380; see also Lin v. United

States, No. 08-5078, slip op. at 8-9 (D.C. Cir. April 7, 2009).

lla

“{(E]mphatic” is how the Court later described

its rejection of the claim that aliens outside the

sovereign territory of the United States are entitled

to due process rights. Verdugo-Urquidez, 494 U.S. at

269 (citing Eisentrager, 339 U.S. at 770). Following

Eisentrager, the Court in Verdugo-Urquidez

concluded that the Fourth Amendment did not

protect nonresident aliens against unreasonable

searches or seizures conducted outside the sovereign

territory of the United States. Jd. at 274-75. The

majority noted that although American citizens

abroad can invoke some constitutional protections,

id. at 270 (citing Reid v. Covert, 354 U.S. 1 (1957)

(plurality opinion)), aliens abroad are in an

altogether different situation. Jd. at 271. The long

line of cases dealing with constitutional rights of

both lawful resident aliens and illegal aliens

establishes “only that aliens receive constitutional

protections when they have come within the

territory of the United States and developed

substantial connections with this country.” Jd. (citing

Plyler v. Doe, 257 U.S. 202, 212 (1982) (The

provisions of the Fourteenth Amendment “are

universal in their application, to all persons within

the territorial jurisdiction ....”) (emphasis added in

Verdugo-Urquidez); Kwong Hai Chew v. Colding, 344

U.S. 590, 596 n. 5 (1953) (“The Bill of Rights is a

futile authority for the alien seeking admission for

the first time to these shores. But once an alien

lawfully enters and resides in this country he

becomes invested with the rights guaranteed by the

Constitution to all people within our borders.”)

(emphasis added in Verdugo-Urquidez)). Those cases

could not help an alien who, like Verdugo-Urquidez

and plaintiffs 1n this case, had at no relevant time

12a

been in the country and had “no previous significant

voluntary connection with the United States,” id.

As Rasul I, 512 F.3d at 666, points out, the

law of this circuit also holds that the Fifth

Amendment does not extend to aliens or foreign

entities without presence or property in the United

States. See People’s Mojahedin, 182 F.3d at 22; 32

County Sovereignty Comm. v. U.S. Dep't of State, 292

F.3d 797, 799 (D.C. Cir. 2002); see also Jifry v. FAA,

370 F.3d 1174, 1182 (D.C. Cir. 2004), cert. denied,

543 U.S. 1146 (2005); Pauling, 278 F.2d at 254 n.3.

We applied this line of authority to Guantanamo

during plaintiffs’ detention. In Al Odah v. United

States, 321 F.3d 1134 (D.C. Cir. 2003), we held that

federal habeas jurisdiction does not extend to

Guantanamo and noted that “[w]Je cannot see why, or

how, the writ may be made available to aliens

abroad when basic constitutional protections are

not.” Jd. at 1141. The Supreme Court reversed that

decision (on statutory grounds) only after plaintiffs’

release. Rasul, 542 U.S. at 483-84.

Discounting the precedents we have just

described, plaintiffs say their position follows from

the century-old Jnsular Cases. A series of Supreme

Court decisions from De Lima vu. Bidwell, 182 U.S. 1

(1901), to Balzac v. Porto Rico, 258 U.S. 298 (1922),

extended “fundamental personal rights’ to

inhabitants of the “unincorporated” U.S. territories,

such as Puerto Rico, Guam and the Philippines. See

generally Dorr v. United States, 195 U.S. 138 (1904).

The United States maintained complete sovereignty

l3a

over these territories,4 and Congress governed the

territories pursuant to its Art. IV, § 3, power to

regulate “Territory or other Property belonging to

the United States.” See Verdugo-Urquidez, 494 U.S.

at 268; Reid, 354 U.S. at 13 (plurality opinion);

Etsentrager, 339 U.S. at 780 (distinguishing Jn re

Yamashita, 327 U.S. 1 (1946), on the ground of “our

sovereignty at that time over these insular

possessions’). Neither factor applies to Guantanamo.

The Jnsular Cases therefore could not have “clearly

established” that constitutional rights extend to

aliens held at Guantanamo.

In short, there was no authority for -— and

ample authority against — plaintiffs’ asserted rights

at the time of the alleged misconduct. The

defendants are therefore entitled to qualified

immunity against plaintiffs’ Bivens claims.5

4 When the United States acquired new territories like

those involved in the Jnsular Cases, either through the treaty

power or the war power, the ties to the “former sovereign [were]

dissolved.” Dorr, 195 U.S. at 141 (quoting Am. Ins. Co. vu. 356

Bales of Cotton, 26 U.S. 511, 542 (1828) (Marshall, C.J.)). The

agreement between the United States and Cuba expressly

disavows such a dissolution of ties to Cuba: “[T]he United

States recognizes the continuance of the ultimate sovereignty of

the Republic of Cuba over the above described areas of land

and water... .” Agreement Between the United States and

Cuba for the Lease of Lands for Coaling and Naval Stations,

Feb. 23, 1903, U.S.-Cuba, T.S. No. 418, art. III.

5 There is an alternative ground fo: dismissing

plaintiffs’ Bivens claims. As Judge Brown noted in her initial

concurrence, federa] courts cannot fashion a Bivens action

when “special factors” counsel against doing so. Rasul J, 512

F.3d at 672-73 (Brown, J., concurring) (quoting Chappel v

Wallace, 462 U.S. 296, 298 (1983)). The danger of obstructing

U.S. national security policy is one such factor. See Sanchez-

14a

This leaves the RFRA claim in Count 7. Our

vacated opinion held as a matter of statutory

interpretation that plaintiffs were not protected

“person[s]” within the meaning of RFRA, 42 U.S.C. §

2000bb-1(a). Boumediene could not possibly have

altered — retroactively — the meaning of RFRA. We

will summarize our analysis in Rasul I.

In enacting RFRA, Congress intended to

incorporate the standard governing free exercise

claims that prevailed before the Supreme Court's

1990 decision in Employment Division v. Smith, 494

U.S. 872 (1990). See City of Boerne v. Flores, 521

U.S. 507, 515 (1997). The aim was to restore what, in

Congress’s view, is the free exercise right the

Constitution guaranteed — in both substance and

scope. We therefore held that the term “person” as

used in RFRA should be read consistently with

similar language in constitutional provisions, as

interpreted by the Supreme Court at the time

Congress enacted RFRA. Rasul J, 512 F.3d at 670—

72. Congress legislated against the background of

precedent establishing that nonresident aliens were

not among the “person[s]” protected by the Fifth

Amendment, Eisentrager, 339 U.S..at 783, and were

not among “the people” protected by the Fourth

Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985).

Sanchez-Espinoza held that “the special needs of foreign affairs

must stay our hand in the creation of damage remedies against

military and foreign polcy' officials for allegedly

unconstitutional treatment of foreign subjects causing injury

abroad.” Jd. We see no basis for distingu:shing this case from

Sanchez-Espinoza. See Rasul J, 512 F.3d at 673 (Brown, J.,

concurring). Plaintiffs’ Bivens claims are therefore foreclosed on

this alternative basis, which is also unaffected by the Supreme

Court’s Boumediene decision.

15a

Amendment, Verdugo-Urquidez, 494 U.S. at 269. See

also Cuban Am. Bar Ass’n v. Christopher, 43 F.3d

1412, 1428 (llth Cir. 1995) (Cuban and Haitian

refugees at Guantanamo Bay lack First Amendment

rights). Reading RFRA in line with these precedents,

we held that plaintiffs are not protected “person([s]”

under this statute. Rasui J, 512 F.3d at 672. We

reinstate that judgment today.®

For the foregoing reasons, we affirm the

district court’s dismissal of Counts 1, 2, 3, 4, 5 and 6

of plaintiffs’ complaint and reverse the district

court’s denial of defendants’ motion to dismiss Count

So ordered.

6 In the alternative, for the reasons stated in Judge

Brown’s initial concurring opinion, defendants are entitled to

qualified immunity against plaintiffs’ RFRA claim. See Rasul J,

512 F.3d at €76 & n.5. (Brown, J., concurring).

16a

BROWN, Circuit Judge, concurring: I join the

majority opinion in full as to the plaintiffs’ Bivens

claims and to the extent it disposes of plaintiffs’

Religious Freedom Restoration Act (“RFRA”) claims

under the doctrine of qualified immunity. I write

separately because | disagree that the term “person”

limits the scope of the RFRA.

The majority reinstates its initial holding that

plaintiffs cannot bring a RFRA claim because they

are not “person|s]” within the meaning of that

statute. See Maj. Op. 10-11 (summarizing its

analysis from Rasul v. Myers, 512 F.3d 644, 668

(D.C. Cir. 2008) (Rasul J). Yet, “[a] fundamental

canon of statutory construction is that, unless

otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common

meaning.” Perrin v. United States, 444 U.S. 37, 42

(1979). RFRA does not define “person,” so we must

look to the word’s ordinary meaning. There is little

mystery that a “person” is “an individual human

being . . . as distinguished from an animal or a

thing.” WEBSTER’S NEW INTERNATIONAL DICTIONARY

1686 (1981). Unlike the majority, I believe Congress

“{did not] specifically imtend[] to vest the term

‘persons’ with a definition ... at odds with its plain

meaning. Rasul v. Rumsfeld, 433 F. Supp. 2d 58, 67

(D.D.C. 2006).

The majority does not point to a single statute

defining “person” so narrowly as to. exclude

nonresident aliens from its ambit, and nothing in

RFRA’s history suggests Congress focused on the

l7a

term’s scope here. RFRA originally provided that

“fgjovernment shall not substantially burden a

person’s exercise of religion” unless such a burden is

“the least restrictive means of furthering [a]

compelling governmental interest.” 42 U.S.C. §

2000bb-1 (1994) (emphasis added). It defined

“exercise of religion” as “the exercise of religion

under the First Amendment to the Constitution.” Jd.

§ 2000bb-2(4) (emphasis added). The reference to the

“First Amendment” made it clear that persons who

did not have First Amendment rights were not

protected by RFRA. Given this clear textual basis,

the term “person” did no work as a limiting

principle—‘First Amendment” did the job.

In the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”) of 2000,

Pub. L. No. 106-274, 114 Stat. 803, Congress

amended RFRA’s definition of “exercise of religion”

to cover “any exercise of religion, whether or not

compelled by, or central to, a system of religious

belief,” and removed the term “First Amendment.”

See id. §§ 7(a), 8(7)(A), 114 Stat. 806, 807. This

change was meant to “clarify[ ] issues that had

generated litigation under RFRA” by providing that

“{rleligious exercise need not be compulsory or

central to the claimant’s religious belief system.”

H.R. REP. No. 106-219, at 30 (1999); see also Adkins

v. Kaspar, 393 F.3d 559, 567-68 & n.34 (5th Cir.

2004) (citing pre-RLUIPA cases requiring “the

religious exercise burdened to be ‘central’ to the

religion”). Congress wanted to expand RFRA’s

protections to a broader range of religious practices,

see Navajo Nation v. U.S. Forest Serv., 479 F.3d

1024, 1033 (9th Cir. 2007); there is no indication it

18a

wanted to broaden the universe of persons protected

by RFRA. However, by removing the term ‘First

Amendment” from RFRA, Congress inadvertently

deleted the textual hook precluding persons who did

not have First Amendment rights from asserting

RFRA claims.

The panel majority attempts to cure the

problem created by Congress’s careless amendment

by constricting the meaning of the term “person.”

This hoils down to a claim that, by removing the

term “First Amendment” from RFRA’s definition of

“exercise of religion,” Congress sub silentio changed

RFRA’s definition of “person.” But this transforms

statutory interpretation into a game of whack-a-

mole: a deleted textual hook does not simply re-

appear in another statutory term.

Finding no other support for its constricted

definition of “person,” the majority turns to decisions

interpreting constitutional provisions: Johnson uv.

Eisentrager, 339 U.S. 763 (1950) (Fifth Amendment),

and United States v. Verdugo-Urquidez, 494 U.S. 259

(1990) (Fourth Amendment). Eltsentrager rejected

this circuit's conclusion that the breadth of the term

“person” in the Fifth Amendment expanded the

coverage of the Due Process Clause beyond its

traditional limits. Nevertheless, nowhere in its

extensive discussion did the Court rely on the

definition of “person.”! Its holding turned on the

1 Simuarly, none of the other Fifth Amendment cases

cited in the majority’s initial opinion, Rasul J, 512 F3d at 668,

rely on the definition of “person.” See Jifry v. FAA, 370 F.3d

1174, 1182-83 (D.C. Cir. 2004) (not mentioning the term

“person” in holding nonresident aliens with insufficient

19a

conventional understanding of the Fifth

Amendment, the “full text” of that Amendment, and

the foreign policy complexities of allowing aliens to

assert constitutional rights. Jd. at 782-83.

Moreover, Eisentrager interpreted the Due Process

Clause; RFRA implements the Free Exercise Clause.

The term “person” does not appear in the Free

Exercise Clause, see U.S. CONST. amend. I

(“Congress shall make no law _ respecting an

establishment of religion, or prohibiting the free

exercise thereof... .”), and thus the definition of

“person” cannot be the reason aliens held abroad do

not have free exercise rights.

Verdugo is even less helpful to the majority.

Unlike LEisentrager, Verdugo did rely on a

definitional analysis, explaining that the Fourth

Amendment did not apply to nonresident aliens

outside of our borders, in part, because “the people”

referred to in the Amendment identifies a “class of

persons who are part of a national community or who

have otherwise developed sufficient connection with

this country to be considered part of that

community.” 494 U.S. at 265 (emphasis added).

While “the people” are merely a “class of persons.”

the relevant inquiry for RFRA purposes is “who are

— ——

contacts do not have Fifth Amendment rights); People’s

Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, 22

(D.C. Cir. 1999) (same for foreign entities).

2 In fact, the Etsentrager Court repeatedly used the

term “person” in its common meaning. See id. at 768 n.1 (citing

cases brought on behalf of “persons,” referring to “German

enemy aliens’); 1d. at 783 (“The Court of Appeals has cited no

authority whatever for holding that the Fifth Amendment

confers rights upon all persons... .”).

20a

‘persons?’ The answer is obvious—‘“persons” are

individual human beings, of whom the American

people are just one class.

While the majority’s approach is untenable,

the plaintiffs still do not prevail. RFRA’s

proscription that “[glovernment shall not

substantially burden a person’s exercise of religion”

and RLUIPA’s new definition of “exercise of religion”

as “any exercise of religion, whether or not compelled

by, or central to, a system of religious belief,” leave

no textual basis for prohibiting suits brought by non-

resident aliens held at Guantanamo, or foreign

nationals who work for American officials on NATO

military bases, or, arguably, jihadists our soldiers

encounter on foreign battlefields. While “statutory

language represents the clearest indication of

Congressional] intent,” we may go beyond the text in

those “rare cases” where a party can show that “the

literal application of a statute will produce a result

demonstrably at odds with the intentions of its

drafters.” Nat'l Pub. Radio, Inc. v. FCC, 254 F.3d

228, 230 (D.C. Cir. 2001).

3 The term “government” provides no lhmiting basis

since RFRA defines this term as including an “official (or other

person acting under color of law) of the United States, or of a

covered entity.” 42 U.S.C. § 2000bb-2(1). Defendants, the

Secretary of Defense and high-ranking mulitary officers, are

unquestionably officials of the United States. Moreover, as the

majority points out, since defendants are officials of the United

States, it is irrelevant whether Guantanamo Bay Naval Base is

a “covered entity.” Rasul J, 512 F.3d at 667 n.19.

2Zla

The unusual drafting history of RFRA and

RLUIPA make this one of those rare cases. RFRA

originally only provided for suits for violation of First

Amendment rights, which did not include intrusions

on the free exercise of those in plaintiffs’ position.

See Cuban Am. Bar Ass'n, Inc. v. Christopher, 43

F.3d 1412, 1428 (11th Cir. 1995). There is no doubt

that RLUIPA’s drafters, in changing the definition of

“exercise of religion,” wanted to broaden the scope of

the kinds of practices protected by RFRA, not to

increase the universe of individuals protected by

RFRA. See H.R. REP. No. 106-219, at 30; Adkins, 393

F.3d at 567-68 & n.34; Navajo Nation, 479 F.3d at

1033. Literal application of RFRA would force us to

hold Congress’s careless drafting inadvertently

expanded the scope of RFRA plaintiffs. Such a result

is “demonstrably at odds with the intentions of

[RLUIPA’s] drafters.” See Nat’ Pub. Radio, 254 F.3d

at 230.

IT]

Accepting plaintiffs’ argument that RFRA

imports the entire Free Exercise Clause edifice into

the military detention context would revolutionize

the treatment of captured combatants in a way

Congress did not contemplate. In drafting RFRA,

Congress was not focused on how to accommodate

the important values of religious toleration in the

military detention setting. If Congress had focused

specifically on this challenge, it would undoubtedly

have struck a different balance: somewhere between

making government officials’ wallets available to

every detainee not afforded the full panoply of free

exercise rights and declaring those in our custody

22a

are not “persons.” It would not have created a RFRA-

like damage remedy, but it likely would have

prohibited, subject to appropriate exceptions,

unnecessarily degrading acts of _ religious

humiliation. It would have sought to deter such acts

not by compensating the victims, but by punishing

the perpetrators or through other administrative

measures. See, e.g., Ronald W. Reagan National

Defense Authorization Act for Fiscal Year 2005, Pub.

L. No. 108-375, §§ 1091 to 1092, 118 Stat. 1811,

2068—71 (2004) (to be codified at 10 U.S.C. § 801

note) (creating an administrative regime to prevent

unlawful treatment oof detainees); Detainee

Treatment Act of 2005, Pub. L. 109-148, § 1003(a),

119 Stat. 2739 (to be codified at 42 U.S.C. § 2000dd)

(“No individual in the custody or under the physical

control of the United States Government, regardless

of nationality or physical location, shall be subject to

cruel, inhuman, or degrading treatment or

punishment.”). Judicial interpretation without text

is at best a stop-gap; at worst, a usurpation. In 2000,

when Congress amended RFRA, jihad was not a

prominent part of our vocabulary and prolonged

military detentions of alleged enemy combatants

were not part of our consciousness. They are now.

Congress should revisit RFRA with these

circumstances in mind.

23a

APPENDIX C —- ENTERED December 22, 2008

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 06-5209 September Term, 2008

SHAFIQ RASUL, ET AL.

APPELLANTS/CROSS-APPELLEES

¥.

RICHARD MYERS, AIR FORCE GENERAL, ET. AL.

APPELLEES/CROSS-APPELLANTS

Consolidated with 06-5222, et al.

Appeals from the United States District Court

for the District of Columbia

(No. 04cv01864)

Before: HENDERSON and BROWN, Circuit

Judges, and RANDOLPH, Senior Circuit Judge.

ORDER

It is ORDERED, on the court’s own motion,

that the parties file supplemental briefs addressing

the effect, if any, of the holding in Boumediene v.

Bush, 128 S.Ct. 2229 (2008), on this court’s opinion

24a

in Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008), in

light of Circuit precedent.

The supplemental briefs (not to exceed 15

pages) are to be filed simultaneously 15 days from

the date of this order. Reply briefs (not to exceed 10

pages) are to be filed 10 days thereafter.

The parties are directed to file and serve their

supplemental briefs by hand.

PER CURIAM

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Lynda M. Flippin

Deputy Clerk

APPENDIX D - ENTERED December 15, 2008

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

December 15, 2008

Mr. Eric L. Lewis

Baach Robinson & Lewis PLLC

1201 F Street, N.W., Suite 500

Washington, DC 20004

Re: Shafiq Rasul, et al.

v. Richard Myers, et al.

No. 08-235

Dear Mr. Lewis:

The Court today entered the following order in

the above-entitled case:

The petition for a writ of certiorari is granted.

The judgment is vacated and the case is remanded to

the United States Court of Appeals for the District of

Columbia Circuit, for further consideration in light

of Boumediene v. Bush, 553 U.S. (2008),

The judgment or mandate of this Court will

not issue for at least twenty-five days pursuant to

26a

Rule 45. Should a petition for rehearing be filed

timely, the judgment or mandate will be further

stayed pending this Court’s action on the petition for

rehearing.

Sincerely,

William K. Sutter. Clerk

APPENDIX E - ENTERED January 11, 2008

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2007

Decided January 11, 2008

No. 06-5209

SHAFIQ RASUL ET'AL.,

APPELLANTS/CROSS-APPELLEES

RICHARD MYERS, AIR FORCE GENERAL ET AL...

APPELLEES/CROSS-APPELLANTS

Consc lidated w it h

06-522?

Appeals from the United States District Court

for the District of Columbia

(No. 04cv01864)

Eric L. Lewis argued the cause for the

appellants/cross-appellees. A. Katherine Toomey

Sarah L. Knapp, Elizabeth A. Wilson, Michael

Ratner, -lennifer M. Green and Shayana Kadidal

were on brief

Sidney S. Rosdeitcher was on bnef for amtei

curtae National Institute of Military Justice et al. in

support of the appellants

28a

William J. Aceves and Paul Hoffman were on

brief for amict curiae International Law Scholars

and Human Rights Organization in support of the

appellants.

Stephen M. Truitt and Michael Rapkin were

on brief for amici curiae Counsel for Guantanamo

Detainees et al. in support of the appellants.

Jerome A. Hoffman and Christopher C. Lund

were on the brief for amici curiae National

Association of Evangelicals et ai. in support of the

cross-appellees.

Jonathan F. Cohn, Deputy Assistant Attorney

General, United States Department of Justice,

argued the cause for the appellees/cross-appellants.

Peter D. Keisler, Assistant Attorney General,

Gregory D. Katsas and Jeffrey S. Bucholtz, Principal

Deputy Associate Attorneys General, and Robert M.

Loeb and Matthew M. Collette, Attorneys, United

States Department of Justice, were on brief. R. Craig

Lawrence, Assistant United States Attorney, entered

an appearance.

Before: HENDERSON, RANDOLPH and

BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge

HENDERSON.

Separate concurring opinion filed by Curcutt

Judge BROWN.

29a

KAREN LECRAFT HENDERSON, Circuit

Judge: Appellants Shafiq Rasul, Asif Iqbal, Rhuhel

Ahmed and Jamal Al-Harith (plaintiffs or detainees)

sued former Secretary of Defense Donald Rumsfeld

(Rumsfeld) and defendant military officers!

(defendants) under the Alien Tort Statute (ATS), 28

U.S.C. § 1350, the Geneva Conventions, 6 U.S.T.

3316 and 6 U.S.T. 3516, the Fifth and Eighth

Amendments to the United States Constitution and

the Religious Freedom Restoration Act (RFRA), 42

U.S.C. §§ 2000bb et seq., seeking damages for their

alleged illegal detention and torture at the United

States Naval Base at Guantanamo Bay, Cuba

(Guantanamo). The defendants argued in district

court that the ATS and Geneva Conventions claims

were barred by the Federal Employees Liability

Reform and Tort Compensation Act of 1988 (Westfall

Act), Pub. L. No. 100-694, 102 Stat. 4563 (1988)

(amending 28 U.S.C. §§ 2671, 2674, 2679) and that

they were entitled to qualified immunity on the

constitutional and RFRA claims. The district court

agreed that the Federal] Tort Claims Act (FTCA), 28

U.S.C. §§ 2679 et seg., provided the exclusive remedy

for the defendants’ allegedly tortious conduct and

thus granted the defendants’ motion to dismiss the

ATS and Geneva Conventions claims. Rasul uv.

Rumsfeld, 414 F. Supp. 2d 26, 30-36 (D.D.C. 2006).

The district court also dismissed the constitutional

claims, holding that the defendants were entitled to

1 The other appellees include Air Force General Richard

Myers, Army Major General Geoffrey Miller, Army General

James T. Hill, Army Major Genera! Michael E. Dunlavey, Army

Brigadier General Michael Lehnet, Army Colonel] Nelson J.

Cannon, Army Colonel Terry Carrico, Army Lieutenant Colonel

William Cline and Army Lieutenant Colonel Diane Beaver.

30a

qualified immunity from suit. Jd. at 41-44. It denied,

however, the defendants’ motion to dismiss the

RFRA claim. Rasul v. Rumsfeld, 433 F. Supp. 2d 58

(D.D.C. 2006). The plaintiffs now appeal the

dismissal of the ATS, Geneva Conventions and

constitutional claims and the defendants appeal the

denial of their motion to dismiss the RFRA claim.

For the reasons set forth below, we affirm the

district court’s dismissal of the ATS, Geneva

Conventions and constitutional claims and reverse

its denial of the motion to dismiss the RFRA claim.

The complaint alleges the following facts.

Shafiq Rasul (Rasul), Asif Iqbal (Iqbal), Rhuhel

Ahmed (Ahmed) and Jamal Al-Harith (Al-Harith)

are citizens and residents of the United Kingdom.

Compl. {| 1. Rasul, Iqbal and Ahmed allege that in

October 2001 they traveled to Afghanistan from

Pakistan to provide humanitarian relief. Jd. § 35.

They claim that General Rashid Dostum, an Uzbek

warlord allied with the United States as part of the

Northern Alliance, captured them in _ northern

Afghanistan on November 28, 2001 and transferred

them to United States custody in Afghanistan one

mvnth later. Id. 94 2, 42-44. In early 2002, they were

transported to Guantanamo, where they remained

as detainees until their repatriation to the United

Kingdom in 2004. Id. {js 5, 58-65.

Al-Harith asserts that he traveled to Pakistan

on October 2, 2001 to attend a religious retreat. Id. 4

3. Upon being advised to leave the country because

of reported animosity towards British citizens, Al-

3la

Harith alleges that he tried to return to Europe

overland via Iran and Turkey. Jd. According to Al-

Harith, while still in Pakistan, the truck in which

Al-Harith was traveling was hijacked at gunpoint by

Afghans. Jd. He claims he was then forced into

another vehicle which crossed the border into

Afghanistan where he was subsequently turned over

to the Taliban. Jd. Al-Harith asserts that the Taliban

accused him of being a British spy and imprisonec

him. Jd. He claims he was released in 2001 when the

Taliban fell and he contacted British emtkassy

officials to secure his evacuation. Jd. United States

forces, in coordination with British officials, detained

Al-Harith and transported him to Guantanamo in

February 2002. Id. 44 3-4, 63.

On December 2, 2002, defendant Rumsfeld

approved for use at Guantanamo interrogation

techniques such as the use of stress positions,

intimidation by the use of dogs, twenty-hour

interrogation sessions, shaving of detainees’ facial

hair, isolation in darkness and silence and the use of

“mild non-injurious physical contact.” Id. § 9.

Rumsfeld subsequently withdrew approval of these

tactics in April 2003. Jd. § 11. The detainees,

however, allege that they were systematically and

repeatedly tortured throughout their two-year

detention at Guantanamo. Id. {| 4. For example, they

claim 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. Jd. € 6.

They also allege that they were harassed while

practicing their religion, td., including forced

shaving of their beards, banning or interrupting

32a

their prayers, denying them copies of the Koran and

prayer mats and throwing a copy of the Koran in a

toilet bucket. Jd. 4] 58, 78, 92, 97, 206.

In addition to Rumsfeld’s approval of these

interrogation techniques, the detainees assert that

the other defendants implemented, supervised and

condoned their torture and detention. See id. 4] 154

(“{[A]}ll [dJefendants were aware that [p]laintiffs were

tortured... .”); 1d. § 155 (“[A]ll [dJefendants took no

steps to prevent the infliction of torture... .”); id 4

156 (“[A]ll [dJefendants authorized and eiicouraged

the infliction of torture ... .”). For example,

plaintiffs allege that defendant Myers, a United

States Air Force General and Chairman of the Joint

Chiefs of Staff, was informed of the torture and

mistreatment of Guantanamo detainees and, as the

senior military officer charged with maintaining the

custody of the detainees, condoned their torture. Id.

“| 20. They assert that defendant Miller, a Major

General in the United States Army, implemented

and condoned the torture and mistreatment of

Guantanamo detainees as the Commander of Joint

Task Force-GTMO. Id. § 21. They claim that

defendant Hill, a General in the United States Army

and Commander of the United States Southern

Command, sought approval for several abusive

interrogation techniques used on them. /d. § 22.

They allege that defendant Dunlavey, a Major

General in the United States Army, implemented

and condoned torture and cruel, inhuman and

degrading acts as the Commander of Joint Task

Force 160/170, which succeeded Joint Task Force-

GTMO at Guantanamo. Id. 4 23. They assert that

defendant Hood, a Brigadier General in the United

33a

States Army, operated the detention facilities at

Guantanamo and had supervisory responsibility for

the detainees as the Commander of Joint Task

Force-GTMO. Id. {| 24. They claim that defendant

Lehnert, a Brigadier General in the United States

Marine Corns, was responsible for the construction

and operatic: of Camp X-Ray and Camp Delta at

Guantanamo and had supervisory responsibility for

detainees. Id. § 25. They allege that defendant

Cannon, 2 Colonel in the United States Army, had

supervisory responsibility for the detainees as

Commander of Camp Delta at Guantanamo. Id. § 26.

They assert that defendant Carrico, also a Colonel in

the United States Army, had _ supervisory

responsibility for the detainees as Commander of

Camp Delta and Camp X-Ray at Guantanamo. Id. |

27. Finally, they claim that defendant Beaver, a

Lieutenant Colonel in the United States Army and

Chief Legal Adviser to defendant Dunlavey, provided

an opinion purporting to justify the torture and

mistreatment of detainees. Jd. { 28.

The plaintiffs were released in March 2004

and returned to the United Kingdom. 7d. {J 5. On

October 27, 2004, they filed a complaint alleging

seven causes of action against defendant Rumsfeld

and the defendant military officers: (1) prelonged

arbitrary detention under the ATS, (2) torture under

the ATS, (3) cruel, inhuman or degrading treatment

under the ATS, (4) violations of the Geneva

Conventions, (5) violations of the Eighth

Amendment, (6) violations of the Fifth Amendment

and (7) violations of RFRA. Compl. 4/4] 159-210. They

claim they suffered physical and_ psychological

trauma as ae result of their detention § at

34a

Guantanamo. Id. 4\{{ 138-140. On March 16, 2005, all

of the defendants moved to dismiss for lack of subject

matter jurisdiction and failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(1)

and (6). Rasul, 414 F. Supp. 2d at 29.

The district court dismissed the ATS, Geneva

Conventions and constitutional claims, concluding,

as discussed infra pp. 11-27 that pursuant to the

Westfall Act, the FTCA provides the exclusive

remedy for torts by a federal official or employee

committed within the scope of his employment.

Rasul, 414 F. Supp. 2d at 31 (citing 28 U.S.C. §

2679(b)(1)). The court held that the ATS and Geneva

Conventions claims were covered by the Westfal! Act

because the defendanis’ authorization,

implementation and supervision of the alleged

torture and detention of the detainees was within

the scope of their employment. Jd. at 32-36. Relying

on the Restatement (Second) of Agency § 228(1)

(1957), the court concluded that the defendants’

conduct was incidental to the conduct authorized, id.

_at 33-34, took place within the time and place

limitations sanctioned by the United States, id. at

34, was done to further the interests of the United

States, id. at 35-36, and was foreseeable, td. at 36. It

further ruled that neither the ATS claims nor the

Geneva Conventions claim fit within one of the

statutory exceptions to the Westfall Act. Id. at 36-38.

Accordingly, because the plaintiffs had failed to

exhaust their administrative remedies as required

by the FTCA, see McNeil v. United States, 508 U.S.

106, 113 (1993) (“The FTCA bar: claimants from

bringing suit in federal court 1.,til they have

exhausted their administrative remecies.”), the court

dismissed the claims under Federal Rule of Civil

Procedure 12(b)(1). Rasul, 414 F. Supp. 2d at 39.

Regarding the two constitutional claims

brought pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971),2. the defendants argued, first, that the

plaintiffs had failed to allege the violation of any

right protected by the Constitution because the

plaintiffs, as Guantanamo detainees, were alicns

locatea outside sovereign United States territory at

the time of the alleged violations and therefore did

not possess any constitutional right. Rasul, 414 F.

Supp. 2d at 39. Even assuming the plaintiffs had

alleged the violation of such a right, the defendants

continued, such a right was not clearly established

at the time of the violations.’ Jd. at 41-44.

2 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.

3 In Saucier v. Katz, 533 U.S. 194, 201 (2001) the

Supreme Court affirmed that under the doctrine of qualified

immunity, a federal official alleged to have violated a plaintiff's

constitutional right is shielded from lability if the right was

not clearly established at the time of the violation. See also

Mitchell v. Forsyth, 472 U.S. 511, 517 (1985) (‘“[G]overnment

officials performing discretionary functions, generally are

shielded from lability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional]

rights of which a reasonable person would have known.”

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))).

Although Saucier involved a section 1983 claim, “the law of

immunity in a Bivens claim against a federal official mirrors

36a

The district court reserved judgment

regarding the defendants’ first argument because, at

the time, the decision in Khalid v. Bush, 355 F.

Supp. 2d 311 (D.D.C. 2005), holding’ that

Guantanamo detainees were not entitled to

constitutional protection, was on appeal. Rasul, 414

F. Supp. 2d at 40-41. It then concluded that the

defendants were entitled to qualified immunity from

suit under Bivens because any constitutional right

the detainees possessed was not clearly established

at the time it was allegedly violated. Jd. at 41.

Relying 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), the district court concluded that

“the Constitution applies only once aliens were

within the territory of the United States and

developed substantial contacts in this country.” /d.

at 44.4 The court noted that “plaintiffs have provided

that in a section 1983 claim against a state official.” Moore v.

Valder, 65 F.3d 189, 192 (D.C. Cir. 1995).

4 In Johnson v. Eisentrager, the Supreme Court held that

German nationals who were convicted of war crimes committed

during World War II and were imprisoned at a United States

army base in Germany had no constitutional right to test the

legality of their detention by way of habeas corpus. In Untted

States v. Verdugo-Urquidez, the Court held that the Fourth

Amendment did not apply to a search by DEA agents of a

Mexican citizen’s residence in Mexico. It summarized

Eisentrager as “reyect{ing}] the claim that aliens are entitled to

Fifth Amendment rights outside the sovereign territory of the

United States” and described other cases involving aliens as

“establishfing] 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.

37a

no case law, and the court finds none, supporting a

conclusion that military officials would have been

aware, in light of the state of the law at the time,

that detainees should be afforded the rights they

now claim.” Id.

The cour reached the opposite conclusion

regarding the plaintiffs’ RFRA claim. Rasul, 433 F.

Supp. 2d at 71. As discussed infra pp. 35-43, RFRA

provides 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.” 42 U.S.C. §

2000bb-1(a)-(b). The district court first considered

whether RFRA applied to Guantanamo. Rasul, 433

F. Supp. 2d at 62-67. It rejected the defendants’

argument that RFRA does not apply

extraterritorially based on its interpretation of 42

U.S.C. § 2000bb-2(2), which defines “Government” to

include “the District of | Columbia, the

Commonwealth of Puerto Rico, and each territory

and possession of the United States.” 42 U.S.C. §

2000bb-2(1), (2) (emphasis added). It reasoned that if

“territory and possession” “is to have any meaning, it

must include lands such as [Guantanamo],” over

which the United States exercises “perhaps as much

control as it possibly could short of ‘ultimate

sovereignty.” Jd. at 65 (quoting Rasul v. Bush, 542

U.S. 466, 475 (2004)). Next, it rejected the

defendants’ assertion that RFRA does not apply to

non-resident aliens. Jd. at 67. It noted that “RFRA

expressly protects the religious exercise of ‘persons,’

38a

a broadly applicable term, commonly including

aliens.” /d. at 66. It reasoned that “because RFRA

explicitiy applies to ‘persons,’ the defendants, at a

bare minimum, must demonstrate that Congress

specifically intended to vest the term ‘persons’ with a

definition .. . at odds with its plain meaning” and

noted that “the defendants cite no authority to

support their construction of RFRA.” ZJd. at 67.

Accordingly, the district court concluded that “RFRA

applies to U.S. government action at the Naval Base

in Guantanamo Bay.” Jd.

The district court then rejected’ the

defendants’ assertion of qualified immunity from

RFRA liability. Applying the first step of Saucier v.

Katz, 533 U.S. 194, 20) (2001), it held that the facts

alleged constituted a violation of RFRA. 433 F. Supp.

2d at 68-69. Specifically, it found that the

defendants’ alleged harassment of the plaintiffs in

the practice of their religion, including “[f]lushing

the Koran down the toilet and forcing Muslims to

shave their beards,” “falls comfortably within the

conduct prohibited from government action by

RFRA.” Jd. At 69. Applying step two of Saucier, the

district court found that the plaintiffs’ rights under

RFRA were clearly established at the time of the

alleged violations, declaring that “[t]he statute's

unambiguous application to U.S. territories and

possessions should have placed the defendants on

notice that they were prohibited from the alleged

conduct in Guantanamo.” Jd. at 71 (footnote

omitted). While “recognizjing] that the defendants

are not constitutional law scholars well versed on

the jurisdictional reach of RFRA,” it concluded that

“given the abhorrent nature of the allegations and

39a

given our Nation’s fundamental commitment to

religious liberty, it seems to this court that in this

case a reasonable official would understand that

what he is doing violates that right.” Jd. at 71

(internal quotations and citations omitted).

The plaintiffs appeal the dismissal of the ATS,

Geneva Conventions and Bivens claims pursuant to

28 U.S.C. § 1291. The defendants’ interlocutory

appeal of the denial of qualified immunity on the

RFRA claim is pursuant to the collateral order

doctrine “to the extent that [the denial] turns on an

issue of law.”” Intl Action Ctr. v. United States, 365

F.3d 20, 23 (D.C. Cir. 2004) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985)).

Il.

We review the district court's legal

conclusions de novo. Cummings v. Dep’t of the Navy,

279 F.3d 1051, 1053 (D.C. Cir. 2002) (“[Wle apply

the de novo standard of review to the district court's

application of law to undisputed fact[s].” (quoting

Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir.

1998)) (alterations in Cummings)). We “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. Jd.

at 1053.

A The ATS Claims

The plaintiffs brought three claims for

violations of the law of nations pursuant to the Alien

Tort Statute (ATS) based on the defendants’ alleged

40a

infliction of “prolonged arbitrary detention,” Compl.

{4 159-66, “torture,” id. 4] 167-72, and “cruel,

inhuman or degrading treatment.” Jd. §/| 173-79. As

noted earlier, the plaintiffs claim that they were

beaten, shackled in painful stress _ positions,

threatened by dogs, subjected to extreme

temperatures, deprived of adequate sleep, food,

sanitation, medical care and communication and

harassed while practicing ther religion. Jd. 4 6.

They assert that, in December 2002, defendant

Rumsfeld approved the use of these interrogation

techniques and others, including shaving of

detainees’ facial hair, isolation in darkness and

silence and the use of “mild noninjurious physical

contact.” Id. 4 9. According to the plaintiffs, the

other defendants authorized, implemented,

supervised and condoned their torture § and

detention, id. 4 20-28, 154-56, and thereby violated

customary international law. Jd. {|| 163, 169, 176

The Alien Tort Statute provides that “[t]he

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. The district court

concluded, however, that pursuant to the Westfall

Act, the plaintiffs’ claims were cognizable only under

the FTCA because the defendants’ alleged conduct

occurred within the scope of their office/employment

Rasul, 414 F. Supp. 2d at 36. It then held that it

lacked subject matter jurisdiction because’ the

plaintiffs failed to exhaust their administrative

remedies as required by the FTCA. dd. at 39 (citing

Simpkins v. District of Columbia Gov't, 108 F.3d 366,

371 (D.C. Cir. 1997) (“This court and the other courts

4la

of appeals have treated the FTCA’s requirement of

filing an administrative complaint with the

appropriate agency prior to instituting an action as

jurisdictional.”)).5

In pertinent part, the Westfall Act

provides:

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). By this provision, the

Westfall Act makes the FTCA remedy “exclusive of

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)

While the Attorney General's certification

“does not conclusively establish as correct the

substitution of the United States as defendant in

place of the employee,” it constitutes “prima facie

° See discussion infra pp. 23-25

42a

evidence that the employee was acting within the

scope of his employment.” Council on Am. Islamic

Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir.

2006) (per curiam) (quoting Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 434 (1995)). The plaintiffs

bear the burden of challenging the certification by

“coming forward with specific facts rebutting the

certification.” Ballenger, 444 F.3d at 662 (quoting

Stokes vu. Cross, 327 F.3d 1210, 1214 (D.C. Cir.

2003)). The court then determines whether the

conduct falls within the scope of employment,

conducting an evidentiary hearing if necessarv.

Kimbro v. Velten, 30 F.3d 1501, 1508 (D.C. Cir.

1994), cert. denied, 515 U.S. 1145 (citing Wang ov.

United States, 947 F.2d 1490, 1402 (9th Cir. 1991);

Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994)). If the

court determines that the employee acted within the

scope of his employment, “the case is, inter alta,

restyled as an action against the United States that

is governed by the [FTCA].” Ballenger, 444 F.3d at

662.

“Scope of employment questions are governed

by the law of the place where the employment

relationship exists.” Majano v. United States, 469

F.3d 138, 141 (D.C. Cir. 2006). We look,then, “to the

decisions of the Court of Appeals for the District of

Columbia for our guidance on the local law.” Jd. “‘As

its framework for determining whether an employee

acted within the scope of employment, the Court of

Appeals for the District of Columbia looks to the

Restatement (Second) of Agency (1957).” Jd. (quoting

Haddon v. United States, 68 F.3d 1420, 1423 (D.C.

Cir. 1995), overruled on other grounds, Osborn uv.

Haley, 127 S. Ct. 881 (2007)). According to the

43a

Restatement, the “[c]onduct 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.” Ballenger, 444

F.3d at 663 (quoting Restatement (Secend) of Agency

§ 228(1) (1958)). “Conduct of a servant is not within

the scope of employment if it is different in kind

from that authorized, far beyond the authorized time

or space limits, or too little actuated by a purpose to

serve the master.” Id. (quoting Restatement

(Second) of Agency § 228(2)).

On March 10, 2005, the Attorney General duly

certified that “{o]n the basis of the information now

available,” all of the defendants were acting within

the scope of their employment “at the time of the

conduct alleged in the complaint.” Certification of

Scope of Employment (App. 60.) Applying the four

Restatement factors, the distr-ct court concluded

that “the alleged actions of the defendants were

within the scope of their employment.” 414 F. Supp.

2d at 36. First, it agreed with the defendants that

their alleged authorization, implementation and

supervision of torture was “incidental to the conduct

authorized.” /d. at 33 (quoting Restatement (Second)

of Agency § 229). It noted that the United States

authorized military personnel in Guantanamo “to

exercise control over the detainees and question the

detainees while in the custody of the United States,”

id. at 34 (citing Authorization for Use of Military

Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)), and

4A.

o+d

that “torture is a foreseeable consequence of the

military's detention of suspected enemy

combatants.” Jd. It also emphasized that the

“complaint alleges torture and abuse tied exclusively

to the plaintiffs’ detention in a military prison and to

the interrogations conducted therein.” Jd. Examining

the second factor, the district court observed that

“the parties do not dispute that the defendants’

actions took place within the time and place

limitations sanctions [sic] by the United States.” Jd.

Regarding the third factor, the district court ruled

that the defendants “were acting, at least in part, to

further the interests of their employer, the United

States.” Jd. at 35-36. It noted that the plaintiffs did

“not allege that the tortious actions arose purely

from personal motives, but claim[ed] that the

defendants’ actions are inextricably intertwined with

their respective roles in the military.” Jd. at 35. It

also observed that “[t}he plaintiffs have not proffered

any evidence that would lead this court to believe

that the defendants had any motive divorced from

the policy of the United States to quash terrorism

around the world.” Jd. And regarding the fourth

factor, the district court concluded that while the

alleged “aggressive techniques may be sanctionable

within the military command, ... the fact that abuse

would occur is foreseeable.” Jd. at 36. It emphasized

that “the heightened climate of anxiety, due to the

stresses of war and pressures after September 11 to

uncover information leading to the capture of

terrorists, would naturally lead to a greater desire to

procure information and, therefore, more aggressive

techniques for interrogations.” Jd.

45a

The plaintiffs do not contest that the second,

third and fourth factors listed in section 228(1) of the

Restatement support tne conclusion that the

defendants acted within the scope of their

employment in authorizing, implementing,

supervising and condoning the plaintiffs’ alleged

torture and detention. They do challenge the district

courts conclusion that the defendants’ alleged

authorization, supervision and implementation of

torture was incidental to the conduct authorized,

claiming that the defendants’ conduct “was never

authorized,” was “seriously criminal,” “has long

[been] condemned” by the United States and was a

“substantial departure from the government’s

‘normal method’ of detaining and interrogating

persons of interest.” Appellants Br. 22, 25.

Alternatively, the plaintiffs assert that even if the

defendants’ conduct falls within the scope of their

employment, their claims come within the exception

included in the Westfall Act for “a civil action

against an employee of the Government... which is

brought for a violation of the Constitution of the

United States.” 28 U.S.C. § 2679(b)(2)(A). Finally,

the plaintiffs argue that the district court erred in

dismissing their claims without allowing them to

conduct discovery.

1. Scope of Employment

According to the detainees, we _ cannot

conclude that the formulation, approval and

implementation of a policy of torture is “of the kind”

of conduct the defendants were employed to perform.

To be “of the kind” of conduct an individual is

employed to perform, the Restatement explains that

46a

the “conduct must be of the same general nature as

that authorized, or incidental to the conduct

authorized.” Restatement (Second) of Agency §

229(1). The defendants respond that “[wJhere high-

level military officials are charged with winning the

war on terror, and specifically with detaining and

obtaining information from suspected terrorists, the

officials’ policies on detention and interrogation, and

their supervision of the implementation of those

policies, is at least ‘incidental’ to those duties.”

Appellees’ Br. 18.®

In Haddon, we held that whether conduct is

incidental depends on whether the conduct is a

“direct outgrowth” of an employment assignment:

According to the D.C. Court of Appeals,

conduct is “incidental” to an employee's

legitimate duties if it is “foreseeable.”

“Foreseeable” in this context does not

carry the same meaning as it does in

negligence cases; rather, it requires the

court to determine whether it is fair to

charge employers with responsibility for

the intentional torts of their employees.

To be foreseeable, the torts must be “a

direct outgrowth of the employee’s

instructions or job assignment.”

6 Although the plaintiffs also assert that the

defendants’ alleged conduct was not “the same general nature

as was authorized,’ Restatement (Second) of Agency § 229(1).

we need not reach this issue because of our conclusion that the

alleged conduct was “incidental to the conduct authorized.”

47va

68 F.3d at 1424 (quoting Boykin v. District of

Columbia, 484 A.2d 560, 562 (D.C. 1984) (quoting

Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 32

(D.C. 1979))).

More recently, in Ballenger, although we did

not explicitly use Boykin’s “direct outgrowth

language,” we nonetheless emphasized that whether

conduct is incidental depends “on the underlying

dispute or controversy, not on the nature of the tort.”

444 F.3d at 664 (internal quotation omitted). We

explained that the “incidental” prong “is broad

enough to embrace any intentional tort arising out of

a dispute that was originally undertaken on the

employer's behalf.” Jd. (internal quotation omitted).

In Ballenger, we examined whether a congressman’s

allegedly defamatory comments made during a

telephone conversation fell within the scope of his

office. We explained that “[t]he appropriate question,

then, is whether that telephone conversation—not

the allegedly defamatory sentence--was the kind of

conduct Ballenger was employed to perform.” Jd.

Because “[s]peaking to the press during regular work

hours in response to a reporter’s inquiry falls within

the scope of a congressman’s ‘authorized duties,” we

held that the allegedly defamatory statement was

incidental to his office. Jd. at 664-65.

Similarly, in Lyon v. Carey, 533 F.2d 649 (D.C.

Cir. 1976), this Court upheld a jury verdict holding a

deliveryman’s employer liable because the employee

acted within the scope of his employment when he

assaulted and raped a customer. The Court reasoned

that the assault “arose naturally and immediately

between [the deliveryman] and the plaintiff about

48a

two items of great significance in connection with his

job[:] the request of the plaintiff... to inspect the

mattress and springs before payment .. . and [the

deliveryman’s}] insistence on getting cash rather

than a check.” Jd. at 652. The Court also noted that

“(t]he dispute arose out of the very transaction which

had brought [the deliveryman] to the premises.” /d;

see also Johnson v. Weinberg, 434 A.2d 404, 409

(D.C. 1981) (upholding jury verdict that laundromat

employee acted within scope of his employment

when he shot customer during dispute over removal

of clothes from washing machine because “[t}he

assault arose out of the transaction which initially

brought (the customer] to the premises .. . and was

triggered by a dispute over the conduct of the

employer’s business”); Howard Univ. v. Best, 484

A.2d 958, 987 (D.C. 1984) (holding that jury could

reasonably find that university dean acted within

scope of employment when he sexually harassed

faculty member during faculty, administrative and

other professional meetings).

In contrast, the District of Columbia courts

have held that tortious conduct is not “incidental” to

the performance of authorized duties if the conduct

underlying the tort is unrelated to the employee’s

instructions or job assignment. For example, in Penn

Central Transportation Co. v. Reddick, 398 A.2d 27

(D.C. 1979), the court held that a railroad employee

was not acting within the scope of his employment

when he kicked a taxicab driver while traveling

between work sites. It concluded that the employee’s

action “was neither a direct outgrowth of fhis|

instructions or job assignment, nor an integral part

of the emplover’s business activity,” noting that

49a

“nothing in the business of running a railroad...

makes it likely that an assault will occur between a

railroad brakeman and a taxicab driver over the

celerity with which the latter will provide a taxicab

ride to the former.” Jd. at 32; see also Boykin, 484

A.2d at 564 (teacher was not acting within scope of

employment when he sexually assaulted student

because teacher was not then performing teaching

responsibilities). And our court, in Haddon, held

that a White House electrician was not acting within

the scope of his employment when he threatened the

White House chef with physical harm. 68 F.3d at

1425. We noted that the electrician’s “alleged tort did

not arise directly out of his instructions or job

assignment as a White House electrician” because

“{uJnlike the rape in Lyon and the shooting in

Johnson, the electrician’s threat did not stem from a

dispute over the performance of his work.” Id.

(emphasis in original). We also observed that

“fuJnlike the sexual harassment in Howard

University, the electrician was not performing his

assigned duties at the time of the incident.” Instead,

we concluded that his conduct was “closer to the kick

in Penn Central and the assault in Boykin” because

“fa]s in those cases, the electrician’s conduct was

completely unrelated to his official responsibilities.”

Id.

The plaintiffs concede that the “torture,

threats, physical and psychological abuse inflicted”

on them, which were. allegedly approved,

implemented, supervised and condoned by the

defendants, were “intended as_ interrogation

techniques to be used on detainees.” Compl. § 141.

In fact, as the district court correctly noted, “the

50a

complaint alleges torture and abuse tied exclusively

to the plaintiffs’ detention in a military prison and to

the interrogations conducted therein.” 414 F. Supp.

2d at 34. Under Ballenger, then, the underlying

conduct—here, the detention and interrogation of

suspected enemy combatants—is the type of conduct

the defendants were employed to engage in. Just as

the telephone conversation in Ballenger, the

mattress delivery in Lyon and the removal of clothes

from the washing machine in Thompson was each

part of the employee’s job description or assignment,

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. See Ballenger, 444 F.3d at 664; Lyon,

533 F.2d at 652; Johnson, 434 A.2d at 409. 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.

Cf. Penn Cent., 398 A.2d at 32; Boykin, 489 A.2d at

564. Therefore, the alleged tortious conduct was

incidental to the defendants’ legitimate employment

duties.

Section 229(2)(j) of the Restatement (Second)

of Agency provides, in pertinent part, that “[i}n

determining whether or not the conduct, although

not authorized, is nevertheless so similar to or

incidental to the conduct authorized as to be within

the scope of employment, the following matters of

fact are to be considered: ... whether or not the act

5la

is seriously criminal.”’ In alleging that the

defendants formnulated, approved and implemented a

policy of torture, the plaintiffs have plainly alleged

“seriously criminal” conduct. But criminal conduct is

not per se outside the scope of employment. See

Restatement (Second) of Agency § 231 (“An act may

be within the scope of employment although

consciously criminal] or tortious.”); Johnson, 434 A.2d

at 409 (laundromat employee shot customer over

laundry dispute); Lyon, 533 F.2d at 652

(deliveryman assaulted and raped customer

following delivery dispute); Brown v. Argenbright

Sec., Inc., 782 A.2d 752, 758 (D.C. 2001) (rule that

sexual assaults are automatically outside scope of

employment “too broad”).

Citing § 229(2)j) of the Restatement, the

piaintiffs argue nonetheless that the _ serious

criminality of the defendants’ alleged conduct

precluded the district court from holding—as a

matter of Jaw—that their conduct was within the

scope of their employment. Here, however, the

district court apparently assumed the truth of the

plaintiffs’ allegation that the defendants’ conduct

was seriously criminal. 414 F. Supp. 2d at 34

(concluding that “torture and inhumane treatment

wrought upon captives by their captors” was “direct

outgrowth of the employees’ instructions and job

assignment”’) (quoting Haddon, 68 F.3d at 1424)

(alteration omitted). Accordingly, regardless whether

the court or a jury resolves factual disputes in a

7 Comment f to section 229(2) states that “[t]he fact that

the act done is a serious crime is a factor indicating that it is

not in the sccve of employment.”

52a

Westfall Act action,®? nothing would be gained by an

evidentiary hearing because the plaintiffs could, at

8 Unlike the determination of scope of employment in a

respondeat superior case in the District of Columbia, where

under local law the issue ts a jury question, see e.g., Johnson,

434 A.2d at 407-09; Lyon, 533 F.2d at 652, our precedent holds

that the court determines whether conduct falls within the

scope of employment under the Westfall Act, conducting an

evidentiary hearing only if necessary to resolve factual

disputes. See Kimbro, 30 F.3d at 1509 (“If there is a material

dispute as to the scope [of employment] issue the district court

must resolve it at an evidentiary hearing.”); Stokes vu. Cross,

327 F.3d 1210, 1214 (D.C, Cir. 2003) (same); cf. Jamison v.

Wiley, 14 F.3d 222, 236 (4th Cir. 1994) (“The federal] courts of

appeals have consistently recognized that a district court has

the power to hold a limited evidentiary hearing to resolve

factual disputes that bear on a scope-of-employment issue

properly before it in a Westfall Act case.”). In a more recent

case, we reversed the district court’s grant of summary

judgment based on its conclusion as a matter of law that the

defendant Smithsonian employee acted within the scope of her

employment under the Westfall Act. Majyano v. United States,

469 F.3d 138 (D.C. Cir. 2006). In Majano, we remanded to the

district court in light of a factual dispute and included the

comment that “scope of employment questions are generally

viewed as questions of fact best resolved by a jury.” Jd. at 140.

At oral argument here, the plaintiffs’ counsel maintained that

the Majano comment makes the scope of employment under the

Westfall Act a jury question. See Recording of 9/14/2007 Oral

Argument at 7:45-8:32 (“Under Majano, [scope of employment]

would be a jury [question]. Under Kimbro v. Velten, the initial

suggestion was that it would be an evidentiary hearing before a

court after discovery. ...Majano seemed to move from Aimbro

vu. Velten and suggest that it was a jury issue.”). But the Majano

holding does not retreat from Kimbro, which case had earler

made clear that the court is to decide any factual] dispute in a

Westfall Act action. Kimbro, 30 F.3d at 1509. Both Kimbro and

Majano disposed of Westfall Act actions as a matter of law,

Kimbro by granting a motion to dismiss, Majano by granting

summary judgment; Kimbro expressly instructed the district

court to resolve any factual dispute while Majano simply noted

53a

most, simply re-establish that the defendants’

conduct was seriously criminal. Where, as here,

there are no material facts in dispute, the court may

decide a Rule 12(b) motion as a matter of Jaw. See,

e.g., Ballenger, 444 F.3d at 663 (affirming district’s

court dismissal of tort claim based on determination

that defendant acted within scope of employment).

If conduct ws seriously criminal,’ the

Restatement explains that it is generally less likely

that the conduct comes within the scope of

employment:

The fact that the servant intends a

crime, especially if the crime is of some

magnitude, 1S considered in

determining whether or not the act is

within the employment, since the

master is not responsible for acts which

are clearly inappropriate to. or

unforeseeable in the accomplishment of

the authorized result. The master can

reasonably anticipate that servants

may commit minor crimes in the

prosecution of the business, but serious

crimes are not only unexpectable but in

general are in nature different from

what servants in a lawful occupation

are expected to do.

Restatement (Second) of Agency § 231 cmt. a.

the existence of a factual dispute and remanded without

mentioning Aimbro

5AéAa

While it may generally be unexpected that

seriously criminal conduct will arise “in the

prosecution of the business,” here it was foreseeable

that conduct that would ordinarily be indisputably

“seriously criminal” would be implemented by

military officials responsible for detaining and

interrogating suspected enemy combatants. As in

Lyon, the tortious conduct “was triggered .. . or

motivated or occasioned by .. . the conduct then and

there of the employer’s business” even though it was

seriously criminal. Lyon, 533 F.2d at 655; see also

Johnson, 434 A.2d at 409 (laundromat employee

acted within scope of employment because “[the

employee] had no previous relations with [the

victim] which would indicate that the tort was

personal” and “[n]o subject unrelated to the

[laundry] was ever made a part of the conversation

between the men”). Therefore, the allegations of

serious criminality do not alter our conclusion that

the defendants’ conduct was incidental to authorized

conduct.®

Because the defendants’ alleged conduct came

within the scope of their office/employment, the

three ATS claims were properly “restyled as [claims]

against the United States that [are] governed by the

[FTCA].” Ballenger, 444 F.3d at 662; see Rasul, 414

F. Supp. 2d at 38-39. Although the district court did

not elaborate—and the parties similarly do not

discuss 1t—we must examine whether the restyled

claams against the United States were properly

§ While the plaintiffs do not rely on the other nine

factors listed in section 229, they do contend that the district

court erroneously determined tae scope of employment without

allowing discovery thereto. See infra pp. 25-27

5d5a

dismissed for lack of jurisdiction. The district court

stated only that “[b]ecause the plaintiffs in this case

did not proceed against the United States, they did

not first present their claim to the appropriate

Federal agency” and therefore “the plaintiffs have

not exhausted their administrative remedies.” 414 F.

Supp. 2d at 39.

The FTCA provides that “[a]n action shall not

be instituted upon a claim against the United States

for money damages ... uniess the claimant shall

have first presented the claim to the appropriate

Federal agency and his claim shall have been finally

denied by the agency in writing.” 28 U.S.C. §

2675(a). As noted earlier, supra p. 12, we view the

failure to exhaust administrative remedies as

jurisdictional. See Simpkins, 108 F.3d at 371.

Accordingly, section 2675(a) required the plaintiffs to

file an admunisirative claim with either the

Department of Defense (DoD) or the appropriate

military department before bringing suit. See 28

C.F.R. § 14.1 (under FTCA, “terms Federal agency

and agency ... include the executive departments

[and] the military departments’). Since their release

in 2004 at least, the plaintiffs have presumably been

able to comply with the exhaustion requirements of

F'TCA-—indeed, they do not argue otherwise. The

record is devoid, however, of any suggestion that

they complied with any of the procedures governing

the filing of an administrative claim with DoD or one

of the mulitary departments.’® Accordingly, the

10 See 28 C.F.R. § 14.2(a) (“[A] claim shall be deemed to

have been presented when a Federal agency receives from a

claimant, his duly authorized agent or legal representative, an

executed Standard Form 95 or other written notification of an

56a

district court properly dismissed the three ATS

claims for lack of subject matter jurisdiction.}1

incident, accompanied by a claim for money damages in a sum

certain for injury to or loss of property, personal injury, or

death alleged to have occurred by reason of the incident; and

the title or legal capacity of the person signing... .”); 32 C.F.R.

§ 750.6(b) (claim against Department of the Navy submitted to

“Tort Claims Unit Norfolk,” “Office of the Judge Advocate

General,” “commanding officer of the Navy or Marine Corps

activity involved if known, the commanding officer of any Navy

or Marine activity, preferably the one nearest to where the

accident occurred, or the local Naval Legal Service Command

activity”); id. § 842.4 (claim against Department of the Air

Force filed “at the base legal office of the unit or instalation at

or nearest to where the accident or incident occurred”); rd. §§

536.3, 536.25 (claim against Department of the Army handled

by “area claims office” or “claims processing office”).

11 The detainees argue in the alternative that even if an

employee’s conduct is within the scope of his employment, the

Westfall Act “does not extend or apply to a civil action” brought

(1) “for a violation of the Constitution of the United States” or

(2) “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)(A)-(B). The plaintiffs maintain that the first

exception applies because they allege Eighth and Fifth

Amendment claims (Counts V-VI) in addition to their ATS

claims (Counts ]-III) and that “civil action” refers to the entire

action rather than an individual claim. Yet, as the First Circuit

has observed, “[w]here a single case involves multiple claims,

certification is properly done at least down to the level of

individual claims and not for the entire case viewed as a

whole.” Lyons v. Brown, 158 F.3d 605, 607 (1st Cir. 1998). This

court—as have a number of other circuits—has permitted the

substitution of the United States if a claim within the Westfall

Act exception is joined with unexcepted claims. See, e.g.,

Sumpkins v. District of Columbia Govt, 108 F.3d 366, 368, 370-

71 (D.C. Cir. 1997) (substituting United States for defendant on

common law tort claims notwithstanding defendant also

charged with constitutional claims); see also RMI Titanium Co.

v. Westinghouse Elec. Corp., 78 F.3d 1125, 1132, 1142-44 (6th

ova

2. Discovery

The plaintiffs assert that the district court

erred by dismissing their claims without allowing

discovery on the scope of employment question. But

discovery is not warranted if “the plaintiff ‘did not

allege any facts in his complaint or in any

subsequent filing . . . that, if true, would

demonstrate that [the defendant] had been acting

outside the scope of his employment.” Stokes uv.

Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003)

(alteration in Stokes) (quoting Singleton v. United

States, 277 F.3d 864, 871 (6th Cir. 2002)). For

example, in Stokes, a federal employee (Stokes) sued

coworkers for defamation arising from their

statements that Stokes had failed to perform his

duties as a law enforcement officer of the United

States Government Printing Office. Jd. at 1212.

Stokes alleged that coworkers “destroy[ed] critical

evidence, prepar[ed] and submit{ted] false affidavits

by use of threat and coercion, and engag[ed] in other

criminal acts.” Jd. at 1216. While noting that “[i]t is

unclear whether evidence of such conduct alone

would be sufficient under District of Columbia law,”

Cir. 1996) (substituting United States for defendant on

common law tort claims notwithstanding additional) Sherman

Act and Lanham Act claims); Pelletier v. Fed. Home Loan Bank

of S.F., 968 F.2d 865, 867 (9th Cir. 1992) (substituting United

States for defendant on common law tort = claims

notwithstanding additional Bivens claims); Duffy v. United

States, 966 F.2d 307, 309, 314 (7th Cir. 1992) (substituting

United States for defendant on common law tort claims

notwithstanding additional Bivens and 42 US.C. § 1985

claims). Accordingly, the plaintiffs’ claims do not fall within the

first exception to the Westfall) Act and they do not rely on the

second exception thereto.

58a

we recognized that evidence of such conduct might

reveal the coworkers’ “intent to prevent the best

candidate, namely Stokes, from getting [al]

promotion . . . [and] indicate that they had

maliciously acted contrary to their employer’s

interest and, therefore, outside the scope of their

employment.” Jd. Accordingly, we decided that

Stokes was entitled to “at least limited discovery on

the scope-of-employment issue.” Jd. In contrast, even

if the detainees were to establish that the

defendants authorized, implemented, supervised and

condoned torture and detention based on evidence

obtained through discovery, the defendants’ conduct

would nonetheless fall within the scope of their

employment because the defendants were employed

to detain and interrogate suspected enemy

combatants and the plaintiffs concede that the

alleged torture and detention were “intended as

interrogation techniques to be used on detainees.”

Compl. 4 141. The plaintiffs thus failed to allege any

facts that, if proven, would establish that the

defendants were acting outside the scope of their

employment and the district court did not abuse its

discretion in denying the plaintiffs discovery. Islamic

Am. Relief Agency v. Gonzales, 477 F.3d 728, 737

(D.C. Cir. 2007) (“The district court has broad

discretion in its handling of discovery, and its

decision to allow or deny discovery is reviewable only

for abuse of discretion.” (quoting Brune v. IRS, 861

F.2d 1284, 1288 (D.C. Cir. 1988))).

B. The Geneva Conventions Clatrn

Similar to Counts I-III], Count IV of the

plaintiffs’ complaint alleges that they were “held

59a

arbitrarily, tortured and otherwise mistreated

during their detention” in violation of the Geneva

Conventions.!2 Compl. § 181. As already noted, the

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’ and then reemphasizes that

‘faJny other civil action or proceeding for money

damages... against the employee ... is precluded.”

United States v. Smith, 499 U.S. 160, 165-66 (1991)

(quoting 28 U.S.C. § 2679(b)(1)). The plaintiffs’ claim

based on the Geneva Conventions is for money

damages and the al

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