Friday, April 24, 2009
D.C. Circuit Dismisses British Detainees' Constitutional Tort Claims
A three-judge panel of the D.C. Circuit ruled on Friday that federal officials were entitled to qualified immunity and that Boumediene v. Bush (holding that the Suspension Clause applies to aliens at Guantanamo Bay) did not mean that the Fifth and Eighth Amendments also extended to aliens detained at Guantanamo Bay. The court thus again affirmed the lower court's dismissal--this second affirmance coming only after the Supreme Court instructed the Circuit to reconsider its first affirmance in light of Boumediene.
The ruling represents a set-back for alien detainees claiming that officials violated the Constitution at Guantanamo Bay (or any other location over which the U.S. exerts anything less than complete sovereignty).
The court "rest[ed] [its] decision on remand" on the officials' qualified immunity. It ruled that the officials enjoyed immunity, because the asserted rights were not "clearly established" at the time of the alleged violation. Why not? Because at the time neither the D.C. Circuit nor the Supreme Court "had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights." Rasul, at 6. (The court reached the "clearly established" prong before the "constitutional rights" prong in its discretion under the Supreme Court's ruling early this year in Pearson v. Callahan.)
The court rejected the petitioner's argument under the Insular Cases that "fundamental personal rights" extend to "unincorporated" territories: Those cases involved only territories over which the U.S. maintained "complete sovereignty," and which "Congress governed . . . pursuant to its Art. IV, Sec. 3, power to regulate 'Territory or other property belonging to the United States.'" "Neither factor applies to Guantanamo." Rasul, at 9.
Therefore, because the rights were not "clearly established" at Guantanamo, officials were entitled to qualified immunity.
With regard to Boumediene's effect on the case, the petitioners sought to extend the Supreme Court's reasoning on the Suspension Clause to the Fifth and Eighth Amendments. Petitioners thus argued that Boumedieneprescribed a functional, multi-factor approach to determine the extraterritorial application of the Fifth Amendment Due Process Clause and the Eighth Amendment Cruel and Unusual Punishment prohibition (in addition to the Suspension Clause).
The argument was not unreasonable, especially given the Supreme Court's remand to the Circuit and its instruction to reconsider the case in light of Boumediene. But the D.C. Circuit rejected it, limiting Boumediene to the Suspension Clause:
The Court [in Boumediene] acknowledged that it had never before determined that the Constitution protected aliens detained abroad and explicitly confined its constitutional holding "only" to the extraterritorial reach of the Suspension Clause. The Court stressed that its decision "does not address the content of the law that governs petitioners' detention. 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. . . .
Rasul, at 4.
The court's ruling on qualified immunity may help insulate it from further review: The court's reading of Boumediene and the Insular Cases may offer the full Circuit and the Supreme Court a comfortable basis upon which to deny review. On the other hand, the Supreme Court, in instructing the Circuit to reconsider in light of Boumediene, may have intended a more seriously consideration of the arguments on Boumediene and Boumediene's application to the Fifth and Eighth Amendments. If so, we might expect more on appeal.