Yesterday I reported on a federal appellate decision out of the Seventh Circuit in Chicago in which the Court of Appeals affirmed a ruling by the District Court denying motions by former Defense Secretary Donald Rumsfeld and the United States to dismiss a lawsuit brought against them by two U.S. citizens for alleged acts of torture they endured at the hands of U.S. forces while in custody in Iraq. Although that case is far from over (see today’s piece Adam Serwer at The American Prospect in which he briefly describes how that case and others like it can still go south), the ruling, if it stands, is an important step toward holding high ranking Bush Administration officials responsible for serious wrongdoing – including torture – committed in the so-called “war on terror.”
But the key thing to remember about that case, Donald Vance and Nathan Ertel v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Circuit August 8, 2011), is that the two plaintiffs who sued Rumsfeld and the U.S. government were American citizens. Consequently, the Seventh Circuit found that if the allegations of the plaintiffs’ complaint were true, then they were entitled to maintain a claim for damages against Rumsfeld for violations of their constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The fact that their rights were violated in Iraq, rather than in the United States, was immaterial:
[W]e agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. We see no persuasive justification in the Bivens case law or otherwise for defendants’ most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone. United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.
Vance v. Rumsfeld, slip op. at 3 (.pdf).
At the same time, however, the Court of Appeals in Vance recognized that other circuits have held that non-U.S. citizens could not maintain lawsuits for damages based on allegations of torture that occurred outside U.S. territory. In particular, the Vance court cited a recent decision by the District of Columbia Circuit, Ali v. Rumsfeld, No. 07-5178 (D.C. Cir. June 21, 2011) (.pdf), in which the court upheld the dismissal of claims brought by Afghan and Iraqi civilians against Rumsfeld and various U.S. military officials for abuse and torture at Bagram Air Force Base and Abu Ghraib prison.
The allegations of torture and abuse in Ali v. Rumsfeld are similar to, but even worse than, the allegations in Vance (I set out the Court of Appeals’ summary of those allegations in Vance in yesterday’s post). Without reiterating those allegations verbatim here, the amended complaint filed in Ali alleged that four of the plaintiffs, who were Afghan citizens, were held for various lengths of time during 2003 and 2004 at Bagram, and the other five plaintiffs, who were Iraqi citizens, were held for various lengths of time during the same period at Abu Ghraib. Each of the plaintiffs alleged that he was subject to various forms of torture and abuse, including sleep deprivation, exposure to extreme temperatures, beatings, deprivation of medical care, death threats, mock executions, deprivation of food and water, and sexual assault. See Ali, slip op. at 3-5. With regard to the individual defendants, including Rumsfeld and various high ranking military officials, the plaintiffs alleged that they:
(1) formulated or implemented policies and practices that caused the torture and other cruel, inhuman or degrading treatment of Plaintiffs; and (2) had effective command and control of U.S. military personnel in Iraq and/or Afghanistan and knew and had reason to know of torture and abuse by their subordinates and failed to promptly and effectively prohibit, prevent and punish unlawful conduct.
Id. at 5.
Like the plaintiffs in Vance, the Ali plaintiffs brought Bivens claims against Rumsfeld and the others for violating their rights under the Due Process Clause of the Fifth Amendment and the Eight Amendment’s prohibition against cruel and unusual punishment. The Ali plaintiffs also asserted claims under the Alien Tort Statute, 28 U.S.C. § 1350, for violations international law, and directly under the Geneva Conventions; and sought a declaratory judgment against Rumsfeld finding that he violated international law, U.S. treaty obligations and the Constitution. Ali, slip op. at 5-6. The District Court dismissed all of the plaintiffs’ claims, and the plaintiffs appealed every issue except the dismissal of their claims under Geneva. Id. at 6-11.
The bulk of the Court of Appeals’ decision deals with the constitutional issues raised by the plaintiffs, and that discussion turns on two major questions: Whether the plaintiffs, who were not U.S. citizens, could assert claims based on the U.S. Constitution; and whether the defendants were entitled to qualified immunity in the event the plaintiffs could do so. With regard to the first issue, both the District Court and the Court of Appeals relied on a series of cases, including Johnson v. Eisentrager, 339 U.S. 763 (1950), and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Zadvydas v. Davis, 533 U.S. 678 (2001), all of which essentially hold that while non-U.S. citizens are protected by the U.S. Constitution while they are physically present within the territorial limits of the United States, they do not have rights under our Constitution in relation to actions taken by the U.S. government outside the territorial limits of the United States. See Ali, slip op. at 7-8 n. 5 for an explanation of those cases.
However, the Court of Appeals recognized that all of those cases were decided prior to the Supreme Court’s decisions in Rasul v. Bush, 542 U.S. 466 (2004), and Boumediene v. Bush, 553 U.S. 723 (2008), which held that foreign detainees at Guantánamo Bay, Cuba, were entitled to file habeas corpus petitions under the Suspension Clause of Article I, Section 9 of the Constitution. So, the question arose whether Rasul and Boumediene effectively overruled or modified earlier cases that held that foreign citizens could not avail themselves of rights under our Constitution for acts occurring outside the country. The Ali court concluded that the answer was most likely no, noting that “the Supreme Court in Boumediene ‘explicitly confined its constitutional holding “only” to the extraterritorial reach of the Suspension Clause’ and ‘disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause.’ [Rasul v. Myers,] 563 F.3d [527,] at 529 [(D.C. Cir. 2009) (per curiam)] (quoting Boumediene, 553 U.S. at 795).” Slip op. at 14.
In other words, Ali interpreted the Supreme Court’s decision in Boumediene to be limited to allowing non-citizens at Guantánamo the right to assert habeas corpus rights; that ruling, according to the Ali court, did not apply to non-citizens located anywhere else in the world (and, in particular, to the plaintiffs in this case who had been incarcerated in a war zone), and it did not apply to any constitutional rights other than the right to bring a habeas petition.
In the end, however, the Ali decision turned not so much on a finding that the plaintiffs had no constitutional rights (although the court believed they had none), but instead on the defendants’ qualified immunity. As the court explained, “[q]ualified immunity shields a government official from civil liability if his conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,’” citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Ali, slip op. at 13. And so, based on the its reading of Boumediene, the court concluded:
As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay—where the Supreme Court has since held the Suspension Clause applies—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 held any constitutional right applies. … [T]herefore, the defendants here are protected from the plaintiffs’ constitutional claims by qualified immunity.
Id. at 14-15 (footnote omitted).
Unfortunately, if I were a betting man I would lay odds that the Supreme Court would agree with the District of Columbia Circuit in Ali, and would, perhaps, go a step further and conclude that non-citizens in the plaintiffs’ circumstances – that is, detained, tortured and abused in a war zone outside the United States – are not entitled to any constitutional rights at all. So, as encouraging as the Vance case was with regard to the rights of U.S. citizens who were subjected to torture in Iraq, the Ali decision has a much broader, and, unfortunately, very negative, impact on our ability to hold the Bush administration accountable for its crimes.