Terrorism

Between 2003 and 2004, four Afghan and five Iraqi citizens were captured and held in Afghanistan and Iraq, respectively, by the U.S. military. The nine sued Donald Rumsfeld, former secretary of the U.S.

Department of Defense, and three high-ranking Army officers for damages and declaratory relief as a result of their treatment while in U.S. custody. That treatment, they alleged, included physical brutality and mental abuse, including sleep deprivation, sexual assault, death threats, humiliation, and the like. The district court dismissed all claims for lack of subject matter jurisdiction. The U.S. Court of Appeals for the D.C. Circuit affirms. On appeal, each Appellant brought two constitutional claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). They argued Appellees committed torture in violation of Appellants’ due process right under the Fifth Amendment and that Appellees’ conduct constituted cruel and unusual punishment in violation of the Eighth Amendment. Citing two of its own cases as controlling, the Court concludes that neither amendment applies to nonresident aliens who were injured extraterritorially while detained by the military in foreign countries where the U.S. was engaged in wars.

Rasul v. Myers (Rasul I), 512 F.3d 644 (D.C. Cir.), vacated, 129 S. Ct. 763 (2008), held that defendants were protected by qualified immunity because, even assuming arguendo they possessed Fifth and Eighth Amendment rights, those rights were not clearly established at the time of their detention and alleged torture. The Court also cites Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), rev’d, 553 U.S. 723 (2008), in which, it says, the Supreme Court “made clear…it had ‘never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution,’ 553 U.S. at 770.” [16]

Rasul v. Myers (Rasul II), 563 F.3d 527 (D.C. Cir.) (per curiam), cert. denied, 130 S. Ct. 1013 (2009), held that federal courts cannot fashion a Bivens action when “special factors” counsel against doing so, determining that the “danger of obstructing U.S. national security policy is one such factor.” [18] “The same rationale applies here,” the Court concludes: “Allowing a Bivens action to be brought against American military officials engaged in war would disrupt and hinder the ability of our armed forces ‘to act decisively and without...

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