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).

• Jurisdiction: United States
• Date: 22 December 2008
• Author: Trilla, Tom

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...