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Rumsfeld, Military Officials Immune from Suit by Foreign Nationals Alleging Torture on Foreign Soil

by Mike Brodheim

On June 21, 2011, a divided D.C. Circuit Court of Appeals affirmed the judgment of a district court that dismissed claims for damages and declaratory relief brought by nine foreign nationals against Donald Rumsfeld, Secretary of the Department of Defense under former President George W. Bush, and three high-ranking Army officers, alleging that, in 2003-2004, while detained at U.S. military facilities in Iraq and Afghanistan, they were subjected to acts of torture and abuse.

The former detainees – four Afghan and five Iraqi citizens – had filed suit in U.S. District Court, raising claims under the Fifth and Eighth Amendments to the U.S. Constitution, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth Geneva Conventions. Upon motion by the defendants, the district court dismissed all of the claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), “and on the ground that the defendants are entitled to qualified immunity.” See: In re Iraq & Afghanistan Detainees Litigation, 479 F.Supp.2d 85 (D.D.C. 2007). On appeal, the plaintiffs challenged only the dismissal of their constitutional and ATS claims.

As to the constitutional claims, the plaintiffs alleged that the defendants had formulated or implemented policies or practices that led to their torture in violation of their due process rights under the Fifth Amendment and their rights under the Eighth Amendment to be free of cruel and unusual punishment.

Declining to reach the question as to whether the alleged misconduct was unconstitutional on the ground (asserted by the plaintiffs) that it “has long been settled that the Constitution forbids the torture of any detainee,” the appellate court instead held that the defendants were entitled to qualified immunity. See: Pearson v. Callahan, 129 S.Ct. 808, 815-16, 818 (2009) (holding that a court can decide a constitutional right was not clearly established without first deciding whether the right exists) [PLN, Sept. 2009, p.42].

The Court of Appeals explained that, although in 2008 the U.S. Supreme Court had extended the right of habeas corpus to nonresident aliens detained at Guantanamo Bay, “it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan – where no court has [ever] held any constitutional right applies.”

Noting there was a “danger of obstructing U.S. national security policy” if an alternative rule were adopted, the D.C. Circuit found that “even if the defendants were not shielded by qualified immunity and the plaintiffs could claim the protections of the Fifth and Eighth Amendments, [it] would decline to sanction a [Constitutional] cause of action because special factors counsel against doing so.”

As to the ATS claims, the appellate court held that in detaining and interrogating suspected enemy combatants, the defendants were acting within the scope of their employment and thus were immunized from suit by the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly referred to as the Westfall Act. See: 28 U.S.C. § 2679(d)(1). The dissent took issue with this holding.

In the dissent’s view, the ATS permitted a cause of action for “deliberate torture perpetrated under color of official authority, and the Westfall Act does not bar these claims.” See: Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), rehearing en banc denied.

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Related legal cases

Ali v. Rumsfeld

In re Iraq & Afghanistan Detainees Litigation