# Petition for Writ of Certiorari — Rasul v. Myers (No. 09-227) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0848%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 ## Text Supreme Us. FIL “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 Sf 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? ho 1 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. v1 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.. | 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. 2 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 6 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 9 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 10 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 1] 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 12 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 13 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, 14 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. 16 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. 17 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 18 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 19 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: 20 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. 2] 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 r 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). 23 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 26 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 27 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: 28 [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 20 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 30 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.” 31 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. 32 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 33 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 34 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 35 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 36 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. 37 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. 38 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 39 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. 40 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 la 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. 2a Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /#/ Michael C. McGrail Deputy Clerk 3a 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 i 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. 4a 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 da 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. 6a 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 Va “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). 8a 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 9a 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 7. 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. I 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. IT 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. I. 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 plaintif [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0848%3A1. Public record. Not legal advice.