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Agency and constitutional law - civil liability of United States officials for acts committed against non-resident aliens - Rasul V. Myers, 512 F.3d 644 (D.C. Cir. 2008).

The Constitution protects the basic civil rights and freedoms of United States citizens against governmental abuse. (1) The rights of aliens--particularly detainee aliens not held on U.S. soil--are more limited. (2) In Rasul v. Myers, (3) the U.S. Court of Appeals for the District of Columbia Circuit considered whether former detainees at the United States Naval Base at Guantanamo Bay, Cuba (Guantanamo) could assert civil, conventional, and constitutional rights against their military captors for illegal detention and torture. (4) The court dismissed the detainee plaintiffs' claims after finding the detainees had not exhausted their administrative remedies and that such protections did not extend to non-resident aliens. (5)

In late 2001, the four plaintiffs traveled as civilians through Pakistan and Afghanistan on alleged humanitarian and religious missions. (6) Militiamen captured the four men and transferred them to the U.S. government. (7) In early 2002, the United States moved the detainees to Guantanamo, where they remained until their repatriation to the United Kingdom in 2004. (8)

In late 2004, the detainees filed a complaint against several U.S. officials. (9) The detainees alleged arbitrary detention and torture under the Alien Tort Statute (ATS), as well as violations of the Geneva Conventions, the Eighth Amendment, the Fifth Amendment, and the Religious Freedom Restoration Act (RFRA). (10) The detainees also claimed physical and psychological injuries as a result of their detention at Guantanamo. (11)

The district court dismissed the ATS, Geneva Conventions, and constitutional claims, concluding that the Federal Tort Claims Act (FTCA), pursuant to the Westfall Act, provided the exclusive remedy for such official acts, and that the detainees had not exhausted their administrative remedies. (12) The district court also concluded that aliens constituted "persons" under RFRA entitled to protection, and that the defendants had violated the detainees' religious freedoms. (13) The detainees appealed the dismissal of their ATS, Geneva Conventions, and constitutional claims, while the defendants appealed the district court's RFRA finding. (14) The District of Columbia Circuit upheld the dismissal of the detainees' claims but reversed the lower court's RFRA decision, holding that RFRA should be interpreted according to other constitutional provisions that exclude non-resident aliens from the definition of a "person." (15)

The Westfall Act provides that in a suit against a government official, if the Attorney General certifies that the official acted within the scope of his duties, any claim arising out of his actions becomes a claim against the United States, rather than the official individually. (16) In such cases, the FTCA remedy is the exclusive remedy. (17) Generally, an official's conduct is within the scope of his employment if it is of the kind he is employed to perform, it occurs within authorized time and space limits, it is done with a purpose to serve his employer, and, if the servant intentionally uses force against another, that use of force is foreseeable by the employer. (18)

Additionally, the Fifth Amendment provides that no person shall be deprived of his liberty without due process, and the Eighth Amendment prohibits cruel and unusual punishment. (19) Recently, the United States Court of Appeals for the District of Columbia Circuit held that detainees at Guantanamo, as aliens without property or presence in the United States, lack constitutional rights because Cuba, not the United States, has sovereignty over Guantanamo. (20) Guantanamo detainees, however, do have a statutory right to habeas review. (21) An official's act that violates a detainee's constitutional rights is subject to qualified immunity if the right was not clearly established at the time of the act. (22) A constitutional right is clearly established if a reasonable official would understand that he was violating the right at the time of his act. (23)

RFRA, on the other hand, provides, "the government shall not substantially burden a person's exercise of religion," but it does not define "person." (24) RFRA's purpose is to restore the free exercise of religion guaranteed by the Constitution and the First Amendment. (25) Ordinarily, courts look first to the language of a statute to determine its meaning. (26) Also, courts should generally read statutes addressing the same subject matter consistently, as if they were one law. (27) For example, under interpretations of similar constitutional provisions, "person" does not include a non-resident alien. (28)

In Rasul v. Myers, the D.C. Circuit ruled that the FTCA precluded the defendants' ATS and conventions claims, and that the Fifth Amendment, Eighth Amendment, and RFRA protections do not apply to non-resident aliens. (29) The court concluded that the plaintiffs' ATS and Geneva conventions claims were against employees of the United States acting within the scope of their employment, such that the FTCA remedy was the exclusive remedy. (30) Specifically, the court found the defendants' acts were of the kind that they were employed to perform, occurred substantially within the authorized time and space limits, served their employer, and were foreseeable. (31) Accordingly, the court held that the FTCA governed, and the plaintiffs' failure to exhaust their administrative remedies, per the FTCA, precluded recovery. (32)

The court also ruled that the plaintiffs' status as non-resident aliens precluded recovery on their constitutional and RFRA claims. (33) The court ruled that non-resident aliens without property in the United States cannot claim constitutional rights, and even assuming arguendo that they could, the defendants could successfully claim qualified immunity. (34) The court also held that the plaintiffs could not qualify as "persons" under RFRA, despite the common meaning of the word, because RFRA's First Amendment protection, interpreted in pari materia with the Fourth and Fifth Amendments' definition of "persons," does not extend to non-resident aliens. (35) As a result, the plaintiffs' RFRA claim, like the ATS, Geneva, and constitutional claims, was unsuccessful. (36)

Rasul v. Myers appears to shield U.S. officials from liability for torture by holding that Guantanamo detainees are less than human, and that the torturers were simply doing their job. (37) Such an interpretation ignores the well-established law supporting the decision. (38) Federal courts have long held that certain humans, as non-resident aliens, are not entitled to U.S. constitutional protections. (39) The court, however, could have rejected the plaintiffs' constitutional claims on established separation of powers principles. (40)

The court's finding that the detainees are not "persons" under certain laws is not tantamount to ruling that the detainees are unworthy of humane treatment by the U.S. government. (41) Rather, it is a pronouncement that the detainees are not the persons to which those statutes apply. (42) In a concurring opinion, the court highlighted the potential for confusing the particular definition of "persons" with the term "humans." (43)

The Rasul v. Myers decision also does not sanction torture as part of an official's employment. (44) Instead, it holds the United States, as an employer, liable for an employee's foreseeable acts. (45) It also holds that before judicially imposed FTCA liability attaches, a plaintiff must exhaust his administrative remedies. (46) Since their release in 2004, the plaintiffs at bar have been able to pursue such remedies, but have inexplicably chosen not to do so. (47)

In Rasul v. Myers, the court considered whether non-resident alien detainees could assert statutory, conventional, and constitutional claims against their captors. Relying on established case law, the court properly held that such claims should be brought against the United States, and not individual officials. The court also properly recognized that non-resident aliens do not share the same legal protections as U.S. citizens, particularly against the U.S. government itself.

(1.) See U.S. CONST. art. I-VII (establishing government of checks and balances); U.S. CONST. amend. I-X (establishing United States citizens' Bill of Rights).

(2.) See Alien Tort Statute, 28 U.S.C. [section] 1350 (2003) (providing federal district courts original jurisdiction over civil actions by aliens for tort only). For jurisdiction to arise pursuant to the Alien Tort Statute (ATS), the tortfeasor must have committed the tort in violation of the law of nations or a treaty of the United States. Id. See generally Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (setting forth rights of prisoners of war); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 973 U.N.T.S. 336 (setting forth rights of civilians during time of war).

(3.) 512 F.3d 644 (D.C. Cir. 2008).

(4.) Id. at 654-72 (documenting court's reasoning).

(5.) Id. at 672 (announcing court's holding).

(6.) Id. at 649-50. The four detainees are Shafiq Rasul (Rasul), Asif Iqbal (Iqbal), Rhuhel Ahmed (Ahmed), and Jamal Al-Harith (Al-Harith). Id. At all relevant times, the detainees were British citizens. Id.

(7.) Id. at 650. Rasul, Iqbal, and Ahmed alleged that as they traveled together through Pakistan and Afghanistan to provide humanitarian relief, a local warlord allied with the United States captured them, and later transferred them to U.S. custody. Id. Al-Harith, traveling on his own, alleged that he was on a religious retreat in Pakistan, when he learned of Pakistani animosity towards British citizens, and tried to return to Europe. Id. Taliban militiamen captured Al-Harith before he could leave the country and United States forces took custody of him several months later. Id.

(8.) Id. at 650.

(9.) Id. at 650-51. The defendants are Donald Rumsfeld, the former Secretary of Defense; Air Force General Richard Myers, Former Chairman of the Joint Chiefs of Staff; Army Major General Geoffrey Miller, Former Commander of the Joint Task Force at Guantanamo Bay Naval Base; Army General James Hill, Commander of the United States Southern Command; Army Major General Michael Dunlavey, Former Commander of the Joint Task Force at Guantanamo Bay Naval Base; Army Brigadier General Jay Hood, Commander of the Joint Task Force at Guantanamo Bay Naval Base; Marine Brigadier General Michael Lehnert, Commander of the Joint Task Force-160 at Guantanamo Bay Naval Base; Army Colonel Nelson Cannon, Commander at Camp Delta at Guantanamo Bay Naval Base; Army Colonel Terry Carrico, Commander of Camp X-Ray-Camp Delta at Guantanamo Bay Naval Base; Army Lieutenant Colonel William Cline, Commander of Camp Delta at Guantanamo Bay Naval Base; Army Lieutenant Colonel Diane Beaver, Legal Advisor to General Dunlevey; and John Does 1-100. Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 29 (D.D.C. 2006).

(10.) Rasul, 512 F.3d at 651. The detainees alleged that the defendants' conduct constituted cruel and unusual punishment in violation of the Eighth Amendment, and that the harsh and unjustified detention at Guantanamo violated the detainees' Fifth Amendment due process rights. Id.; see supra note 2 (discussing Alien Tort Statute); see also Religious Freedom Restoration Act, 42 U.S.C. [section] 2000bb (2006) (hereinafter RFRA) (recognizing free exercise of religion as First Amendment right).

(11.) Rasul, 512 F.3d at 650. The plaintiffs claim the defendants beat them, contorted them, threatened them with dogs, and deprived them of adequate sleep, food, sanitation, medical care, and communication. Id. They also claimed the defendants interfered with their religious rights by interrupting their prayers, forcing them to shave their beards, and throwing a copy of the Koran in the toilet. Id.

(12.) Rasul, 414 F. Supp. 2d at 31-44.

(13.) Rasul v. Rumsfeld, 433 F. Supp. 2d 58, 62-67 (D.D.C. 2006).

(14.) Rasul, 512 F.3d at 649.

(15.) Id. at 654-72.

(16.) 28 U.S.C. [section] 2679(d)(1) (2006). The Attorney General's certification is prima facie evidence that the employee acted within the scope of employment, such that substitution of the United States as defendant was appropriate. Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). If the certification is challenged, and the court determines that the employee acted within the scope of his employment, the case becomes an action against the United States governed by the Federal Tort Claims Act (FTCA). Id.; see FTCA, 28 U.S.C. [section] 2679 (2006) (governing suits against the United States). The FTCA also provides that one cannot sue under the act unless he has presented the claim to the appropriate federal agency, and the agency finally denies the claim in writing. 28 U.S.C. [section] 2675(a) (2006).

(17.) 28 U.S.C. [section] 2679(b)(1) (2006). Under the FTCA, the remedy "is exclusive of any other civil action or proceeding for money damages ... against the employee" and "[a]ny other civil action or proceeding for money damages ... against the employee ... is precluded." Id.; see United States v. Smith, 499 U.S. 160, 165-66 (1991) (recognizing exclusive remedy under FTCA).

(18.) RESTATEMENT (SECOND) OF AGENCY [section] 228(1) (1958); see Council on Am. Islamic Relations, 444 F.3d at 663 (D.C. Cir. 2006) (quoting Restatement's stance on meaning of scope of employment). For conduct to be "of the kind" an individual is employed to perform, the "conduct must be of the same general nature as that authorized, or incidental to the conduct authorized." RESTATEMENT (SECOND) OF AGENCY [section] 229(1) (1958). Conduct is "incidental" to an employee's legitimate duties if it is "foreseeable." Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. 1984). An intentional tort is "foreseeable" if it would be fair to charge an employer with responsibility for that tort because the conduct is a direct outgrowth from the employee's instructions or job assignment. Haddon v. United States, 68 F.3d 1420, 1424 (D.C. Cir. 1995). A tort is also foreseeable if the conduct of the employer's business triggered, motivated, or occasioned the commission of the tort. Lyon v. Carey, 533 F.2d 649, 655 (D.C. Cir. 1976). Conduct is incidental if it arises out of an interaction initiated on the employer's behalf. Council on Am. Islamic Relations, 444 F.3d at 662. Conduct, though unauthorized, may still be within the scope of employment even if it is seriously criminal, although such conduct is less likely to be within the scope of employment. RESTATEMENT (SECOND) OF AGENCY [section] 231, cmt. A (1958).

(19.) See U.S. CONST. amend. V (stating "No person shall ... be deprived of life, liberty, or property, without due process of law"); see also U.S. CONST. amend. VIII (stating "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"). In some instances, a plaintiff may bring an action in federal court against a federal officer or employee for the violation of his constitutional rights. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971) (recognizing plaintiff's action against federal narcotics agents). The Supreme Court has refused to extend Bivens liability to any new category of defendants. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68-69 (2001). The federal courts have cited several reasons for hesitating, primarily focusing on separation of powers concerns and the idea that the executive and legislative branches should handle questions of foreign policy. See, e.g., United States v. Stanley, 483 U.S. 669, 679 (1987) (explaining congressionally-uninvited judicial intrusion into executive affairs inappropriate); Baker v. Carr, 369 U.S. 186, 211 (1962) (noting danger of disparate approaches to single foreign policy issue by different branches of government); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) (citing danger of foreigners using courts to influence U.S. foreign policy).

(20.) Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007). Specifically, the court found that the Constitution does not confer rights on aliens without property or presence within the United States. Id.; see Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (denying Fifth Amendment rights to German prisoners at U.S. army base in Germany); United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) (denying Fourth Amendment rights to non-resident aliens); Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (holding certain constitutional protections unavailable to aliens); see also Lease of Lands for Coaling and Naval Stations, U.S.-Cuba, art. III, Feb. 23, 1903, T.S. No. 418 (providing United States recognizes ultimate sovereignty of Republic of Cuba over Guantanamo); Vermilya-Brown Co. v. Connell, 335 U.S. 377, 409 (1948) to be interpreted in pari materia."). (concluding leased base in Bermuda beyond limits of national sovereignty).

(21.) Rasul v. Bush, 542 U.S. 466, 478-84 (2004); see 28 U.S.C. [section] 2241 (2006) (providing federal courts statutory power to grant writs of habeas corpus).

(22.) Saucier v. Katz, 533 U.S. 194, 201 (2001) (describing qualified immunity of certain constitutional claims). Constitutional claims are subject to a defendant's claims of qualified immunity if a court determines there has been a constitutional violation, and the violated constitutional right was "clearly established" at the time of the violation. Id.

(23.) Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A constitutional right is "clearly established" only if the extent of the right was clear enough that a reasonable officer would understand that his conduct violated that right. Id.

(24.) 42 U.S.C. [section] 2000bb (2006).

(25.) See 42 U.S.C. [section] 2000bb (2006) (recognizing need to curtail government's ability to ignore religious freedoms). Before RFRA, the government had to show a compelling interest before interfering with or burdening a person's exercise of religion. See Sherbert v. Verner, 374 U.S. 398, 406-07 (1963); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The Court later held that a generally applicable law could burden an individual's exercise of religion without demonstrating a compelling interest. Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 888-90 (1990). RFRA recognized the free exercise of religion as a constitutional right secured by the First Amendment and explicitly restored the compelling interest requirement. 42 U.S.C. [section] 2000bb(a) (2006).

(26.) United Mine Workers v. Fed. Mine Safety & Health Review Comm'n, 671 F.2d 615, 621 (D.C. Cir. 1982). Courts generally interpret statutory language to have the plain meaning of its text, unless the language is otherwise defined. Perrin v. United States, 444 U.S. 37, 42 (1979) (stating "[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.").

(27.) Wachovia Bank v. Schmidt, 546 U.S. 303, 315-16 (2006) (quoting Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)). "[U]nder the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read 'as if they were one law.'" Id.; see also United States v. Ursery, 518 U.S. 267, 304-05 (1996) (providing "[T]he Double Jeopardy Clause is part of the same Amendment as the Self-Incrimination Clause, and ought

(28.) See Verdugo-Urquidez, 494 U.S. at 265 (discussing "people" as used in the Fourth Amendment). The Fourth Amendment "refers to 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" and thus excludes aliens located in Mexico. Id.; see also Jifry v. FAA, 370 F.3d 1174, 1182-83 (D.C. Cir. 2004) (holding "person" under Fifth Amendment excludes nonresident aliens with insufficient contacts to United States"); People's Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (ruling "person" under Fifth Amendment inapplicable to "foreign entity without property or presence in this country").

(29.) 512 F.3d at 654-72 (D.C. Cir. 2008).

(30.) Id. at 654-72. The court also recognized that even though the plaintiffs were released in 2004, and have presumably been able to comply with the administrative exhaustion requirements of FTCA, there is no evidence that they tried filing an administrative claim with the Department of Defense or any other military department. Id. at 661.

(31.) Id. at 656-61. The court reasoned that the United States hired the defendants to interrogate and maintain physical control over the plaintiffs, and that the alleged torture was directly incidental to the officials' legitimate duties of interrogation and control. Id. The officials were doing their jobs and serving their employer, albeit in an illegal manner, such that it was fair to hold their employer, the United States, liable for the conduct. Id.

(32.) Id. at 661.

(33.) Id. at 663-72.

(34.) Id. at 663-65. The court reasoned that the plaintiffs were akin to the German nationals convicted of war crimes held at a U.S. army base in Germany in Eisentrager. Johnson v. Eisentrager, 339 U.S. 763, 784 (1950). The court also noted that even at the time of the detention, there was no case law giving rise to non-resident alien constitutional rights, so the defendants could claim qualified immunity. Rasul, 512 F.3d at 666-67.

(35.) Rasul, 512 F.3d at 667-72. The court reasoned that RFRA protected First Amendment rights, so it should look to other Amendments to interpret "person." Id. The court then relied primarily on Eisentrager's interpretation of the Fifth Amendment and Boumediene's interpretation of the Fourth Amendment as excluding non-resident aliens from the definition of "persons." See id. (rejecting argument Fifth or Fourth Amendments give rights to non-resident aliens); supra note 20 (discussing Eisentrager and Boumediene). The concurring opinion noted that the decision "leaves us 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." Rasul, 512 F.3d at 676 (Brown, J., concurring). Judge Brown also noted that a "person" is simply a human, and Americans are but a class of humans. Id. at 675.

(36.) Rasul, 512 F.3d at 672.

(37.) See supra note 35 (recognizing unfortunate irony of holding detainees non-persons to deny claim of inhumane treatment).

(38.) See supra notes 18-20 (setting forth extensive agency law and constitutional precedent supporting holding).

(39.) See supra note 20 (highlighting history of judicial refusal to extend certain constitutional rights to non-resident aliens).

(40.) See supra note 19 (positing judiciary could better reach same result on separation of powers grounds).

(41.) See supra note 30 (indicating court's expectation that detainees would seek administrative relief for inhumane treatment).

(42.) See supra note 35 (outlining limitations on scope of certain protections by defining term "person").

(43.) See supra note 35 (noting common definition of "person" includes all humans).

(44.) See supra note 18 (recognizing such conduct may still be seriously criminal).

(45.) See supra notes 16 and 18 (discussing methods and reasons for holding United States liable for employees' conduct).

(46.) See supra note 16 (discussing exhaustion of administrative remedies requirement of FTCA).

(47.) See supra note 30 (observing plaintiffs could have sought administrative remedy but have not done so).
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Date:Dec 22, 2008
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