Rasul v. Myers

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2007 Decided January 11, 2008

No. 06-5209

SHAFIQ RASUL ET AL.,
APPELLANTS/CROSS-APPELLEES

v.

RICHARD MYERS, AIR FORCE GENERAL ET AL.,
APPELLEES/CROSS-APPELLANTS

Consolidated with
06-5222

Appeals from the United States District Court
for the District of Columbia
(No. 04cv01864)

Eric L. Lewis argued the cause for the appellants/cross-
appellees. A. Katherine Toomey, Sarah L. Knapp, Elizabeth A.
Wilson, Michael Ratner, Jennifer M. Green and Shayana
Kadidal were on brief.
Sidney S. Rosdeitcher was on brief for amici curiae National
Institute of Military Justice et al. in support of the appellants.
William J. Aceves and Paul Hoffman were on brief for amici
curiae International Law Scholars and Human Rights
 2

Organization in support of the appellants.
Stephen M. Truitt and Michael Rapkin were on brief for
amici curiae Counsel for Guantanamo Detainees et al. in support
of the appellants.
Jerome A. Hoffman and Christopher C. Lund were on the
brief for amici curiae National Association of Evangelicals et al.
in support of the cross-appellees.
Jonathan F. Cohn, Deputy Assistant Attorney General,
United States Department of Justice, argued the cause for the
appellees/cross-appellants. Peter D. Keisler, Assistant Attorney
General, Gregory D. Katsas and Jeffrey S. Bucholtz, Principal
Deputy Associate Attorneys General, and Robert M. Loeb and
Matthew M. Collette, Attorneys, United States Department of
Justice, were on brief. R. Craig Lawrence, Assistant United
States Attorney, entered an appearance.
Before: HENDERSON, RANDOLPH and BROWN, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Separate concurring opinion filed by Circuit Judge BROWN.
KAREN LECRAFT HENDERSON, Circuit Judge: Appellants
Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith
(plaintiffs or detainees) sued former Secretary of Defense
Donald Rumsfeld (Rumsfeld) and defendant military officers1
(defendants) under the Alien Tort Statute (ATS), 28 U.S.C.
§ 1350, the Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T.

1
The other appellees include Air Force General Richard Myers,
Army Major General Geoffrey Miller, Army General James T. Hill,
Army Major General Michael E. Dunlavey, Army Brigadier General
Michael Lehnet, Army Colonel Nelson J. Cannon, Army Colonel
Terry Carrico, Army Lieutenant Colonel William Cline and Army
Lieutenant Colonel Diane Beaver.
 3

3516, the Fifth and Eighth Amendments to the United States
Constitution and the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. §§ 2000bb et seq., seeking damages for their
alleged illegal detention and torture at the United States Naval
Base at Guantanamo Bay, Cuba (Guantanamo). The defendants
argued in district court that the ATS and Geneva Conventions
claims were barred by the Federal Employees Liability Reform
and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No.
100-694, 102 Stat. 4563 (1988) (amending 28 U.S.C. §§ 2671,
2674, 2679) and that they were entitled to qualified immunity
on the constitutional and RFRA claims. The district court
agreed that the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2679 et seq., provided the exclusive remedy for the
defendants’ allegedly tortious conduct and thus granted the
defendants’ motion to dismiss the ATS and Geneva Conventions
claims. Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 30-36 (D.D.C.
2006). The district court also dismissed the constitutional
claims, holding that the defendants were entitled to qualified
immunity from suit. Id. at 41-44. It denied, however, the
defendants’ motion to dismiss the RFRA claim. Rasul v.
Rumsfeld, 433 F. Supp. 2d 58 (D.D.C. 2006). The plaintiffs now
appeal the dismissal of the ATS, Geneva Conventions and
constitutional claims and the defendants appeal the denial of
their motion to dismiss the RFRA claim. For the reasons set
forth below, we affirm the district court’s dismissal of the ATS,
Geneva Conventions and constitutional claims and reverse its
denial of the motion to dismiss the RFRA claim.
I.
The complaint alleges the following facts. Shafiq Rasul
(Rasul), Asif Iqbal (Iqbal), Rhuhel Ahmed (Ahmed) and Jamal
Al-Harith (Al-Harith) are citizens and residents of the United
Kingdom. Compl. ¶ 1. Rasul, Iqbal and Ahmed allege that in
October 2001 they traveled to Afghanistan from Pakistan to
provide humanitarian relief. Id. ¶ 35. They claim that General
 4

Rashid Dostum, an Uzbek warlord allied with the United States
as part of the Northern Alliance, captured them in northern
Afghanistan on November 28, 2001 and transferred them to
United States custody in Afghanistan one month later. Id. ¶¶ 2,
42-44. In early 2002, they were transported to Guantanamo,
where they remained as detainees until their repatriation to the
United Kingdom in 2004. Id. ¶¶ 5, 58-65.
Al-Harith asserts that he traveled to Pakistan on October 2,
2001 to attend a religious retreat. Id. ¶ 3. Upon being advised
to leave the country because of reported animosity towards
British citizens, Al-Harith alleges that he tried to return to
Europe overland via Iran and Turkey. Id. According to Al-
Harith, while still in Pakistan, the truck in which Al-Harith was
traveling was hijacked at gunpoint by Afghans. Id. He claims
he was then forced into another vehicle which crossed the border
into Afghanistan where he was subsequently turned over to the
Taliban. Id. Al-Harith asserts that the Taliban accused him of
being a British spy and imprisoned him. Id. He claims he was
released in 2001 when the Taliban fell and he contacted British
embassy officials to secure his evacuation. Id. United States
forces, in coordination with British officials, detained Al-Harith
and transported him to Guantanamo in February 2002. Id. ¶¶ 3-
4, 63.
On December 2, 2002, defendant Rumsfeld approved for use
at Guantanamo interrogation techniques such as the use of stress
positions, intimidation by the use of dogs, twenty-hour
interrogation sessions, shaving of detainees’ facial hair, isolation
in darkness and silence and the use of “mild non-injurious
physical contact.” Id. ¶ 9. Rumsfeld subsequently withdrew
approval of these tactics in April 2003. Id. ¶ 11. The detainees,
however, allege that they were systematically and repeatedly
tortured throughout their two-year detention at Guantanamo. Id.
¶ 4. For example, they claim they were beaten, shackled in
painful stress positions, threatened by dogs, subjected to extreme
 5

temperatures and deprived of adequate sleep, food, sanitation,
medical care and communication. Id. ¶ 6. They also allege that
they were harassed while practicing their religion, id., including
forced shaving of their beards, banning or interrupting their
prayers, denying them copies of the Koran and prayer mats and
throwing a copy of the Koran in a toilet bucket. Id. ¶¶ 58, 78,
92, 97, 206.
In addition to Rumsfeld’s approval of these interrogation
techniques, the detainees assert that the other defendants
implemented, supervised and condoned their torture and
detention. See id. ¶ 154 (“[A]ll [d]efendants were aware that
[p]laintiffs were tortured . . . .”); id. ¶ 155 (“[A]ll [d]efendants
took no steps to prevent the infliction of torture . . . .”); id ¶ 156
(“[A]ll [d]efendants authorized and encouraged the infliction of
torture . . . .”). For example, plaintiffs allege that defendant
Myers, a United States Air Force General and Chairman of the
Joint Chiefs of Staff, was informed of the torture and
mistreatment of Guantanamo detainees and, as the senior
military officer charged with maintaining the custody of the
detainees, condoned their torture. Id. ¶ 20. They assert that
defendant Miller, a Major General in the United States Army,
implemented and condoned the torture and mistreatment of
Guantanamo detainees as the Commander of Joint Task Force-
GTMO. Id. ¶ 21. They claim that defendant Hill, a General in
the United States Army and Commander of the United States
Southern Command, sought approval for several abusive
interrogation techniques used on them. Id. ¶ 22. They allege
that defendant Dunlavey, a Major General in the United States
Army, implemented and condoned torture and cruel, inhuman
and degrading acts as the Commander of Joint Task Force
160/170, which succeeded Joint Task Force-GTMO at
Guantanamo. Id. ¶ 23. They assert that defendant Hood, a
Brigadier General in the United States Army, operated the
detention facilities at Guantanamo and had supervisory
responsibility for the detainees as the Commander of Joint Task
 6

Force-GTMO. Id. ¶ 24. They claim that defendant Lehnert, a
Brigadier General in the United States Marine Corps, was
responsible for the construction and operation of Camp X-Ray
and Camp Delta at Guantanamo and had supervisory
responsibility for detainees. Id. ¶ 25. They allege that defendant
Cannon, a Colonel in the United States Army, had supervisory
responsibility for the detainees as Commander of Camp Delta at
Guantanamo. Id. ¶ 26. They assert that defendant Carrico, also
a Colonel in the United States Army, had supervisory
responsibility for the detainees as Commander of Camp Delta
and Camp X-Ray at Guantanamo. Id. ¶ 27. Finally, they claim
that defendant Beaver, a Lieutenant Colonel in the United States
Army and Chief Legal Adviser to defendant Dunlavey, provided
an opinion purporting to justify the torture and mistreatment of
detainees. Id. ¶ 28.
The plaintiffs were released in March 2004 and returned to
the United Kingdom. Id. ¶ 5. On October 27, 2004, they filed a
complaint alleging seven causes of action against defendant
Rumsfeld and the defendant military officers: (1) prolonged
arbitrary detention under the ATS, (2) torture under the ATS, (3)
cruel, inhuman or degrading treatment under the ATS, (4)
violations of the Geneva Conventions, (5) violations of the
Eighth Amendment, (6) violations of the Fifth Amendment and
(7) violations of RFRA. Compl. ¶¶ 159-210. They claim they
suffered physical and psychological trauma as a result of their
detention at Guantanamo. Id. ¶¶ 138-140. On March 16, 2005,
all of the defendants moved to dismiss for lack of subject matter
jurisdiction and failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(1) and (6). Rasul, 414 F. Supp. 2d at
29.
The district court dismissed the ATS, Geneva Conventions
and constitutional claims, concluding, as discussed infra pp. 11-
27 that pursuant to the Westfall Act, the FTCA provides the
exclusive remedy for torts by a federal official or employee
 7

committed within the scope of his employment. Rasul, 414 F.
Supp. 2d at 31 (citing 28 U.S.C. § 2679(b)(1)). The court held
that the ATS and Geneva Conventions claims were covered by
the Westfall Act because the defendants’ authorization,
implementation and supervision of the alleged torture and
detention of the detainees was within the scope of their
employment. Id. at 32-36. Relying on the Restatement
(Second) of Agency § 228(1) (1957), the court concluded that
the defendants’ conduct was incidental to the conduct
authorized, id. at 33-34, took place within the time and place
limitations sanctioned by the United States, id. at 34, was done
to further the interests of the United States, id. at 35-36, and was
foreseeable, id. at 36. It further ruled that neither the ATS
claims nor the Geneva Conventions claim fit within one of the
statutory exceptions to the Westfall Act. Id. at 36-38.
Accordingly, because the plaintiffs had failed to exhaust their
administrative remedies as required by the FTCA, see McNeil v.
United States, 508 U.S. 106, 113 (1993) (“The FTCA bars
claimants from bringing suit in federal court until they have
exhausted their administrative remedies.”), the court dismissed
the claims under Federal Rule of Civil Procedure 12(b)(1).
Rasul, 414 F. Supp. 2d at 39.
Regarding the two constitutional claims brought pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971),2 the defendants argued, first,
that the plaintiffs had failed to allege the violation of any right
protected by the Constitution because the plaintiffs, as
Guantanamo detainees, were aliens located outside sovereign

2
The holding in Bivens permits a plaintiff to bring an action in
federal court against a federal officer/employee for the violation of his
constitutional rights. 403 U.S. at 389. A Bivens suit is the federal
counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against
a state or local officer/employee for the violation of the claimant’s
constitutional rights.
 8

United States territory at the time of the alleged violations and
therefore did not possess any constitutional right. Rasul, 414 F.
Supp. 2d at 39. Even assuming the plaintiffs had alleged the
violation of such a right, the defendants continued, such a right
was not clearly established at the time of the violations.3 Id. at
41-44.
The district court reserved judgment regarding the
defendants’ first argument because, at the time, the decision in
Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), holding that
Guantanamo detainees were not entitled to constitutional
protection, was on appeal. Rasul, 414 F. Supp. 2d at 40-41. It
then concluded that the defendants were entitled to qualified
immunity from suit under Bivens because any constitutional
right the detainees possessed was not clearly established at the
time it was allegedly violated. Id. at 41. Relying on the United
States Supreme Court’s holdings in Johnson v. Eisentrager, 339
U.S. 763 (1950), and United States v. Verdugo-Urquidez, 494
U.S. 259 (1990), the district court concluded that “the
Constitution applies only once aliens were within the territory of
the United States and developed substantial contacts in this

3
In Saucier v. Katz, 533 U.S. 194, 201 (2001) the Supreme Court
affirmed that under the doctrine of qualified immunity, a federal
official alleged to have violated a plaintiff’s constitutional right is
shielded from liability if the right was not clearly established at the
time of the violation. See also Mitchell v. Forsyth, 472 U.S. 511, 517
(1985) (“‘[G]overnment officials performing discretionary functions,
generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”’ (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))). Although Saucier
involved a section 1983 claim, “the law of immunity in a Bivens claim
against a federal official mirrors that in a section 1983 claim against
a state official.” Moore v. Valder, 65 F.3d 189, 192 (D.C. Cir. 1995).
 9

country.” Id. at 44.4 The court noted that “plaintiffs have
provided no case law, and the court finds none, supporting a
conclusion that military officials would have been aware, in
light of the state of the law at the time, that detainees should be
afforded the rights they now claim.” Id.
The court reached the opposite conclusion regarding the
plaintiffs’ RFRA claim. Rasul, 433 F. Supp. 2d at 71. As
discussed infra pp. 35-43, RFRA provides that the “Government
shall not substantially burden a person’s exercise of religion”
unless the Government “demonstrates that application of the
burden to the person – (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C.
§ 2000bb-1(a)-(b). The district court first considered whether
RFRA applied to Guantanamo. Rasul, 433 F. Supp. 2d at 62-67.
It rejected the defendants’ argument that RFRA does not apply
extraterritorially based on its interpretation of 42 U.S.C.
§ 2000bb-2(2), which defines “Government” to include “the
District of Columbia, the Commonwealth of Puerto Rico, and
each territory and possession of the United States.” 42 U.S.C.
§ 2000bb-2(1), (2) (emphasis added). It reasoned that if

4
In Johnson v. Eisentrager, the Supreme Court held that German
nationals who were convicted of war crimes committed during World
War II and were imprisoned at a United States army base in Germany
had no constitutional right to test the legality of their detention by way
of habeas corpus. In United States v. Verdugo-Urquidez, the Court
held that the Fourth Amendment did not apply to a search by DEA
agents of a Mexican citizen’s residence in Mexico. It summarized
Eisentrager as “reject[ing] the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the United States”
and described other cases involving aliens as “establish[ing] only that
aliens receive constitutional protections when they have come within
the territory of the United States and developed substantial
connections with this country.” 494 U.S. at 269, 271.
 10

“territory and possession” “is to have any meaning, it must
include lands such as [Guantanamo],” over which the United
States exercises “perhaps as much control as it possibly could
short of ‘ultimate sovereignty.’” Id. at 65 (quoting Rasul v.
Bush, 542 U.S. 466, 475 (2004)). Next, it rejected the
defendants’ assertion that RFRA does not apply to non-resident
aliens. Id. at 67. It noted that “RFRA expressly protects the
religious exercise of ‘persons,’ a broadly applicable term,
commonly including aliens.” Id. at 66. It reasoned that
“because RFRA explicitly applies to ‘persons,’ the defendants,
at a bare minimum, must demonstrate that Congress specifically
intended to vest the term ‘persons’ with a definition . . . at odds
with its plain meaning” and noted that “the defendants cite no
authority to support their construction of RFRA.” Id. at 67.
Accordingly, the district court concluded that “RFRA applies to
U.S. government action at the Naval Base in Guantanamo Bay.”
Id.
The district court then rejected the defendants’ assertion of
qualified immunity from RFRA liability. Applying the first step
of Saucier v. Katz, 533 U.S. 194, 201 (2001), it held that the
facts alleged constituted a violation of RFRA. 433 F. Supp. 2d
at 68-69. Specifically, it found that the defendants’ alleged
harassment of the plaintiffs in the practice of their religion,
including “[f]lushing the Koran down the toilet and forcing
Muslims to shave their beards,” “falls comfortably within the
conduct prohibited from government action by RFRA.” Id. at
69. Applying step two of Saucier, the district court found that
the plaintiffs’ rights under RFRA were clearly established at the
time of the alleged violations, declaring that “[t]he statute’s
unambiguous application to U.S. territories and possessions
should have placed the defendants on notice that they were
prohibited from the alleged conduct in Guantanamo.” Id. at 71
(footnote omitted). While “recogniz[ing] that the defendants are
not constitutional law scholars well versed on the jurisdictional
reach of RFRA,” it concluded that “given the abhorrent nature
 11

of the allegations and given our Nation’s fundamental
commitment to religious liberty, it seems to this court that in this
case a reasonable official would understand that what he is
doing violates that right.” Id. at 71 (internal quotations and
citations omitted).
The plaintiffs appeal the dismissal of the ATS, Geneva
Conventions and Bivens claims pursuant to 28 U.S.C. § 1291.
The defendants’ interlocutory appeal of the denial of qualified
immunity on the RFRA claim is pursuant to the collateral order
doctrine “‘to the extent that [the denial] turns on an issue of
law.’” Int’l Action Ctr. v. United States, 365 F.3d 20, 23 (D.C.
Cir. 2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)).
II.
We review the district court’s legal conclusions de novo.
Cummings v. Dep’t of the Navy, 279 F.3d 1051, 1053 (D.C. Cir.
2002) (“‘[W]e apply the de novo standard of review to the
district court’s application of law to undisputed fact[s].’”
(quoting Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir.
1998)) (alterations in Cummings)). We “accept as true the facts
that [the plaintiffs] allege[] in [their] complaint” in reviewing
the district court’s disposition of the defendants’ motion to
dismiss. Id. at 1053.
A. The ATS Claims
The plaintiffs brought three claims for violations of the law
of nations pursuant to the Alien Tort Statute (ATS) based on the
defendants’ alleged infliction of “prolonged arbitrary detention,”
Compl. ¶¶ 159-66, “torture,” id. ¶¶ 167-72, and “cruel, inhuman
or degrading treatment.” Id. ¶¶ 173-79. As noted earlier, the
plaintiffs claim that they were beaten, shackled in painful stress
positions, threatened by dogs, subjected to extreme
temperatures, deprived of adequate sleep, food, sanitation,
medical care and communication and harassed while practicing
 12

their religion. Id. ¶ 6. They assert that, in December 2002,
defendant Rumsfeld approved the use of these interrogation
techniques and others, including shaving of detainees’ facial
hair, isolation in darkness and silence and the use of “mild non-
injurious physical contact.” Id. ¶ 9. According to the plaintiffs,
the other defendants authorized, implemented, supervised and
condoned their torture and detention, id. ¶¶ 20-28, 154-56, and
thereby violated customary international law. Id. ¶¶ 163, 169,
176.
The Alien Tort Statute provides that “[t]he district courts
shall have original jurisdiction of any civil action by an alien for
a tort only, committed in violation of the law of nations or a
treaty of the United States.” 28 U.S.C. § 1350. The district
court concluded, however, that pursuant to the Westfall Act, the
plaintiffs’ claims were cognizable only under the FTCA because
the defendants’ alleged conduct occurred within the scope of
their office/employment. Rasul, 414 F. Supp. 2d at 36. It then
held that it lacked subject matter jurisdiction because the
plaintiffs failed to exhaust their administrative remedies as
required by the FTCA. Id. at 39 (citing Simpkins v. District of
Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (“This
court and the other courts of appeals have treated the FTCA’s
requirement of filing an administrative complaint with the
appropriate agency prior to instituting an action as
jurisdictional.”)).5
In pertinent part, the Westfall Act provides:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United States

5
See discussion infra pp. 23-25.
 13

under the provisions of this title and all references
thereto, and the United States shall be substituted as the
party defendant.
28 U.S.C. § 2679(d)(1). By this provision, the Westfall Act
makes the FTCA remedy “exclusive of any other civil action or
proceeding for money damages” for any tort committed by a
federal official or employee “while acting within the scope of
his office or employment.” 28 U.S.C. § 2679(b)(1).
While the Attorney General’s certification “‘does not
conclusively establish as correct the substitution of the United
States as defendant in place of the employee,’” it constitutes
“prima facie evidence that the employee was acting within the
scope of his employment.” Council on Am. Islamic Relations v.
Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (per curiam)
(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434
(1995)). The plaintiffs bear the burden of challenging the
certification by “‘coming forward with specific facts rebutting
the certification.’” Ballenger, 444 F.3d at 662 (quoting Stokes
v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003)). The court then
determines whether the conduct falls within the scope of
employment, conducting an evidentiary hearing if necessary.
Kimbro v. Velten, 30 F.3d 1501, 1508 (D.C. Cir. 1994), cert.
denied, 515 U.S. 1145 (citing Wang v. United States, 947 F.2d
1400, 1402 (9th Cir. 1991); Melo v. Hafer, 13 F.3d 736, 747 (3d
Cir. 1994)). If the court determines that the employee acted
within the scope of his employment, “the case is, inter alia,
restyled as an action against the United States that is governed
by the [FTCA].” Ballenger, 444 F.3d at 662.
“Scope of employment questions are governed by the law of
the place where the employment relationship exists.” Majano
v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006). We look,
then, “to the decisions of the Court of Appeals for the District
of Columbia for our guidance on the local law.” Id. “‘As its
framework for determining whether an employee acted within
 14

the scope of employment, the Court of Appeals for the District
of Columbia looks to the Restatement (Second) of Agency
(1957).’” Id. (quoting Haddon v. United States, 68 F.3d 1420,
1423 (D.C. Cir. 1995), overruled on other grounds, Osborn v.
Haley, 127 S. Ct. 881 (2007)). According to the Restatement,
the “‘[c]onduct of a servant is within the scope of employment
if, but only if: (a) it is of the kind he is employed to perform; (b)
it occurs substantially within the authorized time and space
limits; (c) it is actuated, at least in part, by a purpose to serve the
master, and (d) if force is intentionally used by the servant
against another, the use of force is not unexpectable by the
master.’” Ballenger, 444 F.3d at 663 (quoting Restatement
(Second) of Agency § 228(1) (1958)). “‘Conduct of a servant is
not within the scope of employment if it is different in kind from
that authorized, far beyond the authorized time or space limits,
or too little actuated by a purpose to serve the master.’” Id.
(quoting Restatement (Second) of Agency § 228(2)).
On March 10, 2005, the Attorney General duly certified that
“[o]n the basis of the information now available,” all of the
defendants were acting within the scope of their employment “at
the time of the conduct alleged in the complaint.” Certification
of Scope of Employment (App. 60.) Applying the four
Restatement factors, the district court concluded that “the
alleged actions of the defendants were within the scope of their
employment.” 414 F. Supp. 2d at 36. First, it agreed with the
defendants that their alleged authorization, implementation and
supervision of torture was “‘incidental to the conduct
authorized.’” Id. at 33 (quoting Restatement (Second) of
Agency § 229). It noted that the United States authorized
military personnel in Guantanamo “to exercise control over the
detainees and question the detainees while in the custody of the
United States,” id. at 34 (citing Authorization for Use of
Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)), and
that “torture is a foreseeable consequence of the military’s
detention of suspected enemy combatants.” Id. It also
 15

emphasized that the “complaint alleges torture and abuse tied
exclusively to the plaintiffs’ detention in a military prison and
to the interrogations conducted therein.” Id. Examining the
second factor, the district court observed that “the parties do not
dispute that the defendants’ actions took place within the time
and place limitations sanctions [sic] by the United States.” Id.
Regarding the third factor, the district court ruled that the
defendants “were acting, at least in part, to further the interests
of their employer, the United States.” Id. at 35-36. It noted that
the plaintiffs did “not allege that the tortious actions arose
purely from personal motives, but claim[ed] that the defendants’
actions are inextricably intertwined with their respective roles in
the military.” Id. at 35. It also observed that “[t]he plaintiffs
have not proffered any evidence that would lead this court to
believe that the defendants had any motive divorced from the
policy of the United States to quash terrorism around the world.”
Id. And regarding the fourth factor, the district court concluded
that while the alleged “aggressive techniques may be
sanctionable within the military command, . . . the fact that
abuse would occur is foreseeable.” Id. at 36. It emphasized that
“the heightened climate of anxiety, due to the stresses of war
and pressures after September 11 to uncover information leading
to the capture of terrorists, would naturally lead to a greater
desire to procure information and, therefore, more aggressive
techniques for interrogations.” Id.
The plaintiffs do not contest that the second, third and fourth
factors listed in section 228(1) of the Restatement support the
conclusion that the defendants acted within the scope of their
employment in authorizing, implementing, supervising and
condoning the plaintiffs’ alleged torture and detention. They do
challenge the district court’s conclusion that the defendants’
alleged authorization, supervision and implementation of torture
was incidental to the conduct authorized, claiming that the
defendants’ conduct “was never authorized,” was “seriously
criminal,” “has long [been] condemned” by the United States
 16

and was a “substantial departure from the government’s ‘normal
method’ of detaining and interrogating persons of interest.”
Appellant’s Br. 22, 25. Alternatively, the plaintiffs assert that
even if the defendants’ conduct falls within the scope of their
employment, their claims come within the exception included in
the Westfall Act for “a civil action against an employee of the
Government . . . which is brought for a violation of the
Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A).
Finally, the plaintiffs argue that the district court erred in
dismissing their claims without allowing them to conduct
discovery.
1. Scope of Employment
According to the detainees, we cannot conclude that the
formulation, approval and implementation of a policy of torture
is “of the kind” of conduct the defendants were employed to
perform. To be “of the kind” of conduct an individual is
employed to perform, the Restatement explains that the
“conduct must be of the same general nature as that authorized,
or incidental to the conduct authorized.” Restatement (Second)
of Agency § 229(1). The defendants respond that “[w]here
high-level military officials are charged with winning the war on
terror, and specifically with detaining and obtaining information
from suspected terrorists, the officials’ policies on detention and
interrogation, and their supervision of the implementation of
those policies, is at least ‘incidental’ to those duties.”
Appellees’ Br. 18.6
In Haddon, we held that whether conduct is incidental
depends on whether the conduct is a “direct outgrowth” of an
employment assignment:
6
Although the plaintiffs also assert that the defendants’ alleged
conduct was not “the same general nature as was authorized,”
Restatement (Second) of Agency § 229(1), we need not reach this
issue because of our conclusion that the alleged conduct was
“incidental to the conduct authorized.”
 17

According to the D.C. Court of Appeals, conduct is
“incidental” to an employee's legitimate duties if it is
“foreseeable.” “Foreseeable” in this context does not
carry the same meaning as it does in negligence cases;
rather, it requires the court to determine whether it is fair
to charge employers with responsibility for the
intentional torts of their employees. To be foreseeable,
the torts must be “‘a direct outgrowth of the employee’s
instructions or job assignment.’”
68 F.3d at 1424 (quoting Boykin v. District of Columbia, 484
A.2d 560, 562 (D.C. 1984) (quoting Penn Cent. Transp. Co. v.
Reddick, 398 A.2d 27, 32 (D.C. 1979))).
More recently, in Ballenger, although we did not explicitly
use Boykin’s “direct outgrowth language,” we nonetheless
emphasized that whether conduct is incidental depends “on the
underlying dispute or controversy, not on the nature of the tort.”
444 F.3d at 664 (internal quotation omitted). We explained that
the “incidental” prong “is broad enough to embrace any
intentional tort arising out of a dispute that was originally
undertaken on the employer’s behalf.” Id. (internal quotation
omitted). In Ballenger, we examined whether a congressman’s
allegedly defamatory comments made during a telephone
conversation fell within the scope of his office. We explained
that “[t]he appropriate question, then, is whether that telephone
conversation—not the allegedly defamatory sentence—was the
kind of conduct Ballenger was employed to perform.” Id.
Because “[s]peaking to the press during regular work hours in
response to a reporter’s inquiry falls within the scope of a
congressman’s ‘authorized duties,’” we held that the allegedly
defamatory statement was incidental to his office. Id. at 664-65.
Similarly, in Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976),
this Court upheld a jury verdict holding a deliveryman’s
employer liable because the employee acted within the scope of
his employment when he assaulted and raped a customer. The
 18

Court reasoned that the assault “arose naturally and immediately
between [the deliveryman] and the plaintiff about two items of
great significance in connection with his job[:] the request of the
plaintiff . . . to inspect the mattress and springs before payment
. . . and [the deliveryman’s] insistence on getting cash rather
than a check.” Id. at 652. The Court also noted that “[t]he
dispute arose out of the very transaction which had brought [the
deliveryman] to the premises.” Id; see also Johnson v.
Weinberg, 434 A.2d 404, 409 (D.C. 1981) (upholding jury
verdict that laundromat employee acted within scope of his
employment when he shot customer during dispute over removal
of clothes from washing machine because “[t]he assault arose
out of the transaction which initially brought [the customer] to
the premises . . . and was triggered by a dispute over the conduct
of the employer’s business”); Howard Univ. v. Best, 484 A.2d
958, 987 (D.C. 1984) (holding that jury could reasonably find
that university dean acted within scope of employment when he
sexually harassed faculty member during faculty, administrative
and other professional meetings).
In contrast, the District of Columbia courts have held that
tortious conduct is not “incidental” to the performance of
authorized duties if the conduct underlying the tort is unrelated
to the employee’s instructions or job assignment. For example,
in Penn Central Transportation Co. v. Reddick, 398 A.2d 27
(D.C. 1979), the court held that a railroad employee was not
acting within the scope of his employment when he kicked a
taxicab driver while traveling between work sites. It concluded
that the employee’s action “was neither a direct outgrowth of
[his] instructions or job assignment, nor an integral part of the
employer’s business activity,” noting that “nothing in the
business of running a railroad . . . makes it likely that an assault
will occur between a railroad brakeman and a taxicab driver
over the celerity with which the latter will provide a taxicab ride
to the former.” Id. at 32; see also Boykin, 484 A.2d at 564
(teacher was not acting within scope of employment when he
 19

sexually assaulted student because teacher was not then
performing teaching responsibilities). And our court, in
Haddon, held that a White House electrician was not acting
within the scope of his employment when he threatened the
White House chef with physical harm. 68 F.3d at 1425. We
noted that the electrician’s “alleged tort did not arise directly out
of his instructions or job assignment as a White House
electrician” because “[u]nlike the rape in Lyon and the shooting
in Johnson, the electrician’s threat did not stem from a dispute
over the performance of his work.” Id. (emphasis in original).
We also observed that “[u]nlike the sexual harassment in
Howard University, the electrician was not performing his
assigned duties at the time of the incident.” Instead, we
concluded that his conduct was “closer to the kick in Penn
Central and the assault in Boykin” because “[a]s in those cases,
the electrician’s conduct was completely unrelated to his official
responsibilities.” Id.
The plaintiffs concede that the “torture, threats, physical and
psychological abuse inflicted” on them, which were allegedly
approved, implemented, supervised and condoned by the
defendants, were “intended as interrogation techniques to be
used on detainees.” Compl. ¶ 141. In fact, as the district court
correctly noted, “the complaint alleges torture and abuse tied
exclusively to the plaintiffs’ detention in a military prison and
to the interrogations conducted therein.” 414 F. Supp. 2d at 34.
Under Ballenger, then, the underlying conduct—here, the
detention and interrogation of suspected enemy combatants—is
the type of conduct the defendants were employed to engage in.
Just as the telephone conversation in Ballenger, the mattress
delivery in Lyon and the removal of clothes from the washing
machine in Thompson was each part of the employee’s job
description or assignment, the detention and interrogation of
suspected enemy combatants is a central part of the defendants’
duties as military officers charged with winning the war on
terror. See Ballenger, 444 F.3d at 664; Lyon, 533 F.2d at 652;
 20

Johnson, 434 A.2d at 409. While the plaintiffs challenge the
methods the defendants used to perform their duties, the
plaintiffs do not allege that the defendants acted as rogue
officials or employees who implemented a policy of torture for
reasons unrelated to the gathering of intelligence. Cf. Penn
Cent., 398 A.2d at 32; Boykin, 489 A.2d at 564. Therefore, the
alleged tortious conduct was incidental to the defendants’
legitimate employment duties.
Section 229(2)(j) of the Restatement (Second) of Agency
provides, in pertinent part, that “[i]n determining whether or not
the conduct, although not authorized, is nevertheless so similar
to or incidental to the conduct authorized as to be within the
scope of employment, the following matters of fact are to be
considered: . . . whether or not the act is seriously criminal.”7 In
alleging that the defendants formulated, approved and
implemented a policy of torture, the plaintiffs have plainly
alleged “seriously criminal” conduct. But criminal conduct is
not per se outside the scope of employment. See Restatement
(Second) of Agency § 231 (“An act may be within the scope of
employment although consciously criminal or tortious.”);
Johnson, 434 A.2d at 409 (laundromat employee shot customer
over laundry dispute); Lyon, 533 F.2d at 652 (deliveryman
assaulted and raped customer following delivery dispute);
Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758 (D.C. 2001)
(rule that sexual assaults are automatically outside scope of
employment “too broad”).
Citing § 229(2)(j) of the Restatement, the plaintiffs argue
nonetheless that the serious criminality of the defendants’
alleged conduct precluded the district court from holding—as a
matter of law—that their conduct was within the scope of their
employment. Here, however, the district court apparently

7
Comment f to section 229(2) states that “[t]he fact that the act
done is a serious crime is a factor indicating that it is not in the scope
of employment.”
 21

assumed the truth of the plaintiffs’ allegation that the
defendants’ conduct was seriously criminal. 414 F. Supp. 2d at
34 (concluding that “torture and inhumane treatment wrought
upon captives by their captors” was “‘direct outgrowth of the
employees’ instructions and job assignment’”) (quoting Haddon,
68 F.3d at 1424) (alteration omitted). Accordingly, regardless
whether the court or a jury resolves factual disputes in a
Westfall Act action,8 nothing would be gained by an evidentiary

8
Unlike the determination of scope of employment in a respondeat
superior case in the District of Columbia, where under local law the
issue is a jury question, see e.g., Johnson, 434 A.2d at 407-09; Lyon,
533 F.2d at 652, our precedent holds that the court determines whether
conduct falls within the scope of employment under the Westfall Act,
conducting an evidentiary hearing only if necessary to resolve factual
disputes. See Kimbro, 30 F.3d at 1509 (“If there is a material dispute
as to the scope [of employment] issue the district court must resolve
it at an evidentiary hearing.”); Stokes v. Cross, 327 F.3d 1210, 1214
(D.C. Cir. 2003) (same); cf. Jamison v. Wiley, 14 F.3d 222, 236 (4th
Cir. 1994) (“The federal courts of appeals have consistently
recognized that a district court has the power to hold a limited
evidentiary hearing to resolve factual disputes that bear on a
scope-of-employment issue properly before it in a Westfall Act
case.”). In a more recent case, we reversed the district court’s grant of
summary judgment based on its conclusion as a matter of law that the
defendant Smithsonian employee acted within the scope of her
employment under the Westfall Act. Majano v. United States, 469
F.3d 138 (D.C. Cir. 2006). In Majano, we remanded to the district
court in light of a factual dispute and included the comment that
“scope of employment questions are generally viewed as questions of
fact best resolved by a jury.” Id. at 140. At oral argument here, the
plaintiffs’ counsel maintained that the Majano comment makes the
scope of employment under the Westfall Act a jury question. See
Recording of 9/14/2007 Oral Argument at 7:45-8:32 (“Under Majano,
[scope of employment] would be a jury [question]. Under Kimbro v.
Velten, the initial suggestion was that it would be an evidentiary
hearing before a court after discovery. . . . Majano seemed to move
from Kimbro v. Velten and suggest that it was a jury issue.”). But the
 22

hearing because the plaintiffs could, at most, simply re-establish
that the defendants’ conduct was seriously criminal. Where, as
here, there are no material facts in dispute, the court may decide
a Rule 12(b) motion as a matter of law. See, e.g., Ballenger, 444
F.3d at 663 (affirming district’s court dismissal of tort claim
based on determination that defendant acted within scope of
employment).
If conduct is seriously criminal, the Restatement explains
that it is generally less likely that the conduct comes within the
scope of employment:
The fact that the servant intends a crime, especially if the
crime is of some magnitude, is considered in
determining whether or not the act is within the
employment, since the master is not responsible for acts
which are clearly inappropriate to or unforeseeable in the
accomplishment of the authorized result. The master
can reasonably anticipate that servants may commit
minor crimes in the prosecution of the business, but
serious crimes are not only unexpectable but in general
are in nature different from what servants in a lawful
occupation are expected to do.
Restatement (Second) of Agency § 231 cmt. a.
While it may generally be unexpected that seriously criminal
conduct will arise “in the prosecution of the business,” here it
was foreseeable that conduct that would ordinarily be

Majano holding does not retreat from Kimbro, which case had earlier
made clear that the court is to decide any factual dispute in a Westfall
Act action. Kimbro, 30 F.3d at 1509. Both Kimbro and Majano
disposed of Westfall Act actions as a matter of law, Kimbro by
granting a motion to dismiss, Majano by granting summary judgment;
Kimbro expressly instructed the district court to resolve any factual
dispute while Majano simply noted the existence of a factual dispute
and remanded without mentioning Kimbro.
 23

indisputably “seriously criminal” would be implemented by
military officials responsible for detaining and interrogating
suspected enemy combatants. As in Lyon, the tortious conduct
“was triggered . . . or motivated or occasioned by . . . the
conduct then and there of the employer’s business” even though
it was seriously criminal. Lyon, 533 F.2d at 655; see also
Johnson, 434 A.2d at 409 (laundromat employee acted within
scope of employment because “[the employee] had no previous
relations with [the victim] which would indicate that the tort was
personal” and “[n]o subject unrelated to the [laundry] was ever
made a part of the conversation between the men”). Therefore,
the allegations of serious criminality do not alter our conclusion
that the defendants’ conduct was incidental to authorized
conduct.9
Because the defendants’ alleged conduct came within the
scope of their office/employment, the three ATS claims were
properly “restyled as [claims] against the United States that [are]
governed by the [FTCA].” Ballenger, 444 F.3d at 662; see
Rasul, 414 F. Supp. 2d at 38-39. Although the district court did
not elaborate—and the parties similarly do not discuss it—we
must examine whether the restyled claims against the United
States were properly dismissed for lack of jurisdiction. The
district court stated only that “[b]ecause the plaintiffs in this
case did not proceed against the United States, they did not first
present their claim to the appropriate Federal agency” and
therefore “the plaintiffs have not exhausted their administrative
remedies.” 414 F. Supp. 2d at 39.
The FTCA provides that “[a]n action shall not be instituted
upon a claim against the United States for money damages . . .
unless the claimant shall have first presented the claim to the

9
While the plaintiffs do not rely on the other nine factors listed in
section 229, they do contend that the district court erroneously
determined the scope of employment without allowing discovery
thereto. See infra pp. 25-27.
 24

appropriate Federal agency and his claim shall have been finally
denied by the agency in writing.” 28 U.S.C. § 2675(a). As
noted earlier, supra p. 12, we view the failure to exhaust
administrative remedies as jurisdictional. See Simpkins, 108
F.3d at 371. Accordingly, section 2675(a) required the plaintiffs
to file an administrative claim with either the Department of
Defense (DoD) or the appropriate military department before
bringing suit. See 28 C.F.R. § 14.1 (under FTCA, “terms
Federal agency and agency . . . include the executive
departments [and] the military departments”). Since their
release in 2004 at least, the plaintiffs have presumably been able
to comply with the exhaustion requirements of FTCA—indeed,
they do not argue otherwise. The record is devoid, however, of
any suggestion that they complied with any of the procedures
governing the filing of an administrative claim with DoD or one
of the military departments.10 Accordingly, the district court

10
See 28 C.F.R. § 14.2(a) (“[A] claim shall be deemed to have
been presented when a Federal agency receives from a claimant, his
duly authorized agent or legal representative, an executed Standard
Form 95 or other written notification of an incident, accompanied by
a claim for money damages in a sum certain for injury to or loss of
property, personal injury, or death alleged to have occurred by reason
of the incident; and the title or legal capacity of the person
signing . . . .”); 32 C.F.R. § 750.6(b) (claim against Department of the
Navy submitted to “Tort Claims Unit Norfolk,” “Office of the Judge
Advocate General,” “commanding officer of the Navy or Marine
Corps activity involved if known, the commanding officer of any
Navy or Marine activity, preferably the one nearest to where the
accident occurred, or the local Naval Legal Service Command
activity”); id. § 842.4 (claim against Department of the Air Force filed
“at the base legal office of the unit or installation at or nearest to
where the accident or incident occurred”); id. §§ 536.3, 536.25 (claim
against Department of the Army handled by “area claims office” or
“claims processing office”).
 25

properly dismissed the three ATS claims for lack of subject
matter jurisdiction.11
2. Discovery
The plaintiffs assert that the district court erred by
dismissing their claims without allowing discovery on the scope

11
The detainees argue in the alternative that even if an employee’s
conduct is within the scope of his employment, the Westfall Act “does
not extend or apply to a civil action” brought (1) “for a violation of the
Constitution of the United States” or (2) “for a violation of a statute of
the United States under which such action against an individual is
otherwise authorized.” 28 U.S.C. § 2679(b)(2)(A)-(B). The plaintiffs
maintain that the first exception applies because they allege Eighth
and Fifth Amendment claims (Counts V-VI) in addition to their ATS
claims (Counts I-III) and that “civil action” refers to the entire action
rather than an individual claim. Yet, as the First Circuit has observed,
“[w]here a single case involves multiple claims, certification is
properly done at least down to the level of individual claims and not
for the entire case viewed as a whole.” Lyons v. Brown, 158 F.3d 605,
607 (1st Cir. 1998). This court—as have a number of other
circuits—has permitted the substitution of the United States if a claim
within the Westfall Act exception is joined with unexcepted claims.
See, e.g., Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 368,
370-71 (D.C. Cir. 1997) (substituting United States for defendant on
common law tort claims notwithstanding defendant also charged with
constitutional claims); see also RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1132, 1142-44 (6th Cir. 1996) (substituting
United States for defendant on common law tort claims
notwithstanding additional Sherman Act and Lanham Act claims);
Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 867 (9th Cir.
1992) (substituting United States for defendant on common law tort
claims notwithstanding additional Bivens claims); Duffy v. United
States, 966 F.2d 307, 309, 314 (7th Cir. 1992) (substituting United
States for defendant on common law tort claims notwithstanding
additional Bivens and 42 U.S.C. § 1985 claims). Accordingly, the
plaintiffs’ claims do not fall within the first exception to the Westfall
Act and they do not rely on the second exception thereto.
 26

of employment question. But discovery is not warranted if “the
plaintiff ‘did not allege any facts in his complaint or in any
subsequent filing . . . that, if true, would demonstrate that [the
defendant] had been acting outside the scope of his
employment.’” Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir.
2003) (alteration in Stokes) (quoting Singleton v. United States,
277 F.3d 864, 871 (6th Cir. 2002)). For example, in Stokes, a
federal employee (Stokes) sued coworkers for defamation
arising from their statements that Stokes had failed to perform
his duties as a law enforcement officer of the United States
Government Printing Office. Id. at 1212. Stokes alleged that
coworkers “destroy[ed] critical evidence, prepar[ed] and
submit[ted] false affidavits by use of threat and coercion, and
engag[ed] in other criminal acts.” Id. at 1216. While noting that
“[i]t is unclear whether evidence of such conduct alone would
be sufficient under District of Columbia law,” we recognized
that evidence of such conduct might reveal the coworkers’
“intent to prevent the best candidate, namely Stokes, from
getting [a] promotion . . . [and] indicate that they had
maliciously acted contrary to their employer’s interest and,
therefore, outside the scope of their employment.” Id.
Accordingly, we decided that Stokes was entitled to “at least
limited discovery on the scope-of-employment issue.” Id. In
contrast, even if the detainees were to establish that the
defendants authorized, implemented, supervised and condoned
torture and detention based on evidence obtained through
discovery, the defendants’ conduct would nonetheless fall within
the scope of their employment because the defendants were
employed to detain and interrogate suspected enemy combatants
and the plaintiffs concede that the alleged torture and detention
were “intended as interrogation techniques to be used on
detainees.” Compl. ¶ 141. The plaintiffs thus failed to allege
any facts that, if proven, would establish that the defendants
were acting outside the scope of their employment and the
district court did not abuse its discretion in denying the plaintiffs
 27

discovery. Islamic Am. Relief Agency v. Gonzales, 477 F.3d
728, 737 (D.C. Cir. 2007) (“‘The district court has broad
discretion in its handling of discovery, and its decision to allow
or deny discovery is reviewable only for abuse of discretion.’”
(quoting Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988))).
B. The Geneva Conventions Claim
Similar to Counts I-III, Count IV of the plaintiffs’ complaint
alleges that they were “held arbitrarily, tortured and otherwise
mistreated during their detention” in violation of the Geneva
Conventions.12 Compl. ¶ 181. As already noted, the Westfall
Act provides that “‘[t]he remedy against the Government under
the FTCA ‘is exclusive of any other civil action or proceeding
for money damages . . . against the employee’ and then
reemphasizes that ‘[a]ny other civil action or proceeding for
money damages . . . against the employee . . . is precluded.’”
United States v. Smith, 499 U.S. 160, 165-66 (1991) (quoting 28
U.S.C. § 2679(b)(1)). The plaintiffs’ claim based on the Geneva
Conventions is for money damages and the alleged conduct falls
within the defendant’s scope of employment for the reasons
discussed supra pp. 16-23. Similarly, the plaintiffs’ argument
that the first exception to the Westfall Act applies because they
alleged Eighth and Fifth Amendment claims (Counts V-VI) in
addition to their Geneva Conventions claim is rejected for the
reasons discussed supra note 11. The Geneva Conventions
claim is therefore precluded by the Westfall Act and the district
court properly dismissed the claim for failure to exhaust
administrative remedies. See Simpkins, 108 F.3d at 371.

12
Neither the plaintiffs’ complaint nor their briefs identify those
portions of the Geneva Convention Relative to the Protection of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, or
the Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, the
defendants allegedly violated.
 28

C. The Bivens Claims
The plaintiffs assert two Bivens claims for violations of their
Fifth and Eighth Amendment rights. They allege that the
defendants’ challenged conduct constituted cruel and unusual
punishment in violation of the Eighth Amendment. Compl.
¶ 186. Additionally, they claim that the “cruel, inhuman or
degrading” conditions at Guantanamo violated their substantive
due process rights and their “arbitrary and baseless detention”
violated their procedural due process rights, both in violation of
the Fifth Amendment. Compl. ¶¶ 194-95. The defendants first
respond that the detainees, as aliens located outside sovereign
United States territory at the time of the alleged violations, had
no rights protected by the Constitution. Even assuming the
plaintiffs were protected by the Constitution, the defendants
submit that any rights they possessed thereunder were not
clearly established at the time of the alleged violations and the
defendants are therefore entitled to qualified immunity from suit
pursuant to Harlow v. Fitzgerald, 457 U.S. 800 (1982), Mitchell
v. Forsyth, 472 U.S. 511 (1985), and their progeny.
We recently held that Guantanamo detainees lack
constitutional rights because they are aliens without property or
presence in the United States, Boumediene v. Bush, 476 F.3d
981, 984 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).
Boumediene involved a Suspension Clause13 challenge to the
Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005,
119 Stat. 2680, 2740-44 (2005) (DTA) (amending 28 U.S.C.
§ 2241), and the Military Commissions Act of 2006, Pub. L. No.
109-366, § 7, 120 Stat. 2600, 2635-36 (2006) (MCA) (amending
28 U.S.C. § 2241). The DTA was enacted in response to the
Supreme Court’s decision in Rasul v. Bush, 542 U.S. 466, 483-
84 (2004), see Boumediene, 476 F.3d at 985, which held that

13
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.” U.S. Const. art. I, § 9, cl. 2.
 29

federal courts have subject matter jurisdiction over petitions
filed by Guantanamo detainees seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. The DTA stripped federal courts
of subject matter jurisdiction over detainees’ habeas petitions
except as provided therein. DTA § 1005(e), 119 Stat. at 2742
(“Except as provided in section 1005 [creating Combatant Status
Review Tribunal], no court, justice, or judge shall have
jurisdiction to hear or consider . . . (1) an application for a writ
of habeas corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba; or (2) any
other action against the United States or its agents relating to
any aspect of the detention by the Department of Defense of an
alien at Guantanamo Bay, Cuba . . . .”). The next year, the
Supreme Court held that the DTA did not apply to habeas
petitions pending at the time the DTA was enacted. Hamdan v.
Rumsfeld, 126 S. Ct. 2749, 2769 n.15 (2006) (“[W]e conclude
that [the DTA] does not strip federal courts’ jurisdiction over
[habeas] cases pending on the date of the DTA’s enactment.”).
In response to Hamdan, the Congress passed the MCA, making
the DTA retroactive. MCA § 7(b), 120 Stat. at 2636 (“The
amendment [ousting the courts of subject matter jurisdiction
over detainees’ habeas petitions] shall take effect on the date of
the enactment of this Act, and shall apply to all cases, without
exception, pending on or after the date of the enactment of this
Act which relate to any aspect of the detention, transfer,
treatment, trial, or conditions of detention of an alien detained
by the United States since September 11, 2001.” (emphasis
added)).
We held in Boumediene that neither the DTA nor the MCA
violates the Suspension Clause based in part on our
determination that “[p]recedent in this court and the Supreme
Court holds that the Constitution does not confer rights on aliens
without property or presence within the United States.” 476
F.3d at 991. First, we explained that the “controlling case” was
Johnson v. Eisentrager, 339 U.S. 763 (1950), which involved
 30

German nationals convicted of war crimes who were held at a
United States army base in Germany and who filed habeas
petitions to challenge their convictions and imprisonment. The
Supreme Court rejected the proposition “that the Fifth
Amendment confers rights upon all persons, whatever their
nationality, wherever they are located and whatever their
offenses,” holding that the German nationals had no
constitutional right to petition for habeas corpus relief under the
Fifth Amendment. Id. at 783. We concluded in Boumediene
that any difference between Guantanamo and the United States
army prison in Germany was “immaterial” because “[t]he text
of the lease and decisions of circuit courts and the Supreme
Court all make clear that Cuba—not the United States—has
sovereignty over Guantanamo Bay.” Boumediene, 476 F.3d at
992. We noted that the Supreme Court decision following
Eisentrager held that the Fourth Amendment did not protect a
nonresident alien from a DEA agent’s allegedly unreasonable
search and seizure carried out in Mexico. Id. at 991 (citing
United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990)).
We observed that the Supreme Court “found it ‘well established
that certain constitutional protections available to persons inside
the United States are unavailable to aliens outside our
geographic borders.’” Id. at 991-92 (quoting Zadvydas v. Davis,
533 U.S. 678, 693 (2001)). We rejected the detainees’ reliance
on the Insular Cases,14 distinguishing those cases on the ground
that the Congress had exercised its power to regulate those
territories, whereas “[h]ere Congress and the President have
specifically disclaimed the sort of territorial jurisdiction they

14
In the Insular Cases, the Supreme Court extended “fundamental
personal rights” to United States territories. See Balzac v. Porto [sic]
Rico, 258 U.S. 298, 312-13 (1922); Dorr v. United States, 195 U.S.
138, 148 (1904). As noted in Boumediene, “in each of those cases,
Congress had exercised its power under Article IV, Section 3 of the
Constitution to regulate ‘Territory or other Property belonging to the
United States,’ U.S. Const., art. IV, § 3, cl. 2.” 476 F.3d at 992.
 31

asserted in Puerto Rico, the Philippines, and Guam.” Id. at 992.
Finally, we explained that “[p]recedent in this circuit also
forecloses the detainees’ claims to constitutional rights,” noting
that we had previously held that “‘non-resident aliens . . . plainly
cannot appeal to the protection of the Constitution or laws of the
United States’” and that a “‘foreign entity without property or
presence in this country has no constitutional rights, under the
due process clause or otherwise.’” Id. (quoting Pauling v.
McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960); People’s
Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22
(D.C. Cir. 1999)).
The plaintiffs nonetheless assert that Boumediene conflicts
with the Supreme Court’s holding in Rasul. Rasul reversed our
decision in Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.
2003), in which we had held that the federal court’s habeas
jurisdiction did not extend to aliens detained by United States
military forces outside the United States. 321 F.3d at 1144.
Although the holding was limited to the jurisdictional question,
the Al Odah opinion included a discussion of whether basic
constitutional protections were available to aliens abroad.
Relying on Eisentrager, inter alia, we concluded that detainees
were not entitled to due process, id. at 1141, and accordingly,
“[w]e cannot see why, or how, the writ may be made available
to aliens abroad when basic constitutional protections are not.”
Id. But in Rasul, the Supreme Court, significantly, did not reach
the issue of whether Guantanamo detainees possess
constitutional rights and instead based its holding on 28 U.S.C.
§ 2241 only. Rasul, 542 U.S. at 478-84. For example, the Court
explained that “persons detained outside the territorial
jurisdiction of any federal district court no longer need rely on
the Constitution as the source of their right to federal habeas
review.” Id. at 478. It emphasized that “[w]hat is presently at
stake is only whether the federal courts have jurisdiction to
determine the legality of the Executive’s potentially indefinite
detention of individuals who claim to be wholly innocent of
 32

wrongdoing.” Id. at 485. Thus, Boumediene does not conflict
with Rasul and remains the law of this Circuit.15
Even assuming arguendo the detainees can assert their Fifth
and Eighth Amendment claims, those claims are nonetheless
subject to the defendants’ assertion of qualified immunity. In
determining whether qualified immunity applies, as we earlier
noted,16 the court must first determine whether “[t]aken in the
light most favorable to the party asserting the injury . . . the facts
alleged show the officer’s conduct violated a constitutional
right.” Saucier, 533 U.S. at 201. “[I]f a violation could be made
out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly
established.” Id. at 201. “A constitutional right was ‘clearly
established’ at the time of the events in question only if ‘[t]he
contours of the right [were] sufficiently clear that a reasonable
officer would understand that what he [was] doing violate[d]
that right.’” Butera v. District of Columbia, 235 F.3d 637, 646
(D.C. Cir. 2001) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987) (alterations in Butera)).17
The plaintiffs argue that a reasonable person would have
been on notice that the defendants’ alleged conduct was
15
Boumediene is currently before the Supreme Court on certiorari
review. Nevertheless, we must follow Circuit precedent until and
unless it is altered by our own en banc review or by the High Court.
See United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006)
(“[W]e are, of course, bound to follow circuit precedent absent
contrary authority from an en banc court or the Supreme Court.”
(citing Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C. Cir. 1979))).
16
See supra note 3.
17
Because Boumediene was then pending in our Court, the district
court assumed the first step of the Saucier inquiry and proceeded to
analyze “whether the plaintiffs’ alleged constitutional rights were
clearly established at the time of the alleged abuse.” 414 F. Supp. 2d
at 41.
 33

unconstitutional because the “prohibition on torture is
universally accepted.” Appellants’ Br. 38. The issue we must
decide, however, is whether the rights the plaintiffs press under
the Fifth and Eighth Amendments were clearly established at the
time of the alleged violations.
An examination of the law at the time the plaintiffs were
detained reveals that even before Boumediene, courts did not
bestow constitutional rights on aliens located outside sovereign
United States territory. Supreme Court and Circuit precedent,
consistent with Eisentrager’s rejection of the proposition “that
the Fifth Amendment confers rights upon all persons, whatever
their nationality, wherever they are located and whatever their
offenses,” concluded that non-resident aliens enjoy no
constitutional rights. Eisentrager, 339 U.S. at 783; see, e.g.,
Verdugo-Urquidez, 494 U.S. at 269 (Fourth Amendment did not
apply to the search and seizure of an alien’s Mexican residence);
Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004), cert. denied,
543 U.S. 1146 (2005) (“The Supreme Court has long held that
non-resident aliens who have insufficient contacts with the
United States are not entitled to Fifth Amendment
protections.”); People’s Mojahedin Org. of Iran. v. U.S. Dep’t
of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (“A foreign entity
without property or presence in this country has no
constitutional rights, under the due process clause or
otherwise.”); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d
1412, 1428 (11th Cir. 1995) (Cuban and Haitian refugees at
Guantanamo Bay lacked First and Fifth Amendment rights). In
light of this precedent, we agree with the district court that “[t]he
plaintiffs have provided no case law, and the court finds none,
supporting a conclusion that military officials would have been
aware, in light of the state of the law at the time, that detainees
should be afforded the rights they now claim.” 414 F. Supp. 2d
at 44.
 34

Finally, the plaintiffs contend that they were not non-
resident aliens while they were at Guantanamo because the law
recognized Guantanamo as sovereign United States territory at
the time of the alleged violations. They are mistaken. The
United States entered into an indefinite lease with Cuba in 1903
for the Guantanamo Bay Naval Base. Lease of Lands for
Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, T.S. No.
418, Art. III. The lease provides that “the United States
recognizes the continuance of the ultimate sovereignty of the
Republic of Cuba” and “the Republic of Cuba consents that
during the period of the occupation by the United States . . . the
United States shall exercise complete jurisdiction and control
over and within said areas.” Id. (emphasis added). Precedent
regarding other leased military bases also supported the
conclusion that Guantanamo is not a United States territory. For
example, in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 390
(1948), the Supreme Court stated that a leased military base in
Bermuda was “beyond the limits of national sovereignty.”
Similarly, in Eisentrager, the Court held that a United States
military prison in Germany was outside the sovereign territory
of the United States. 339 U.S. at 778. Based on the plain text
of the lease and on case law, it was not clearly established at the
time of the alleged violations—nor even today—that a
reasonable officer would know that Guantanamo is sovereign
United States territory.18 Accordingly, we affirm the district
18
Since the plaintiffs’ release, we have held that Guantanamo is
not sovereign United States territory. Boumediene, 476 F.3d at 992
(“The text of the lease and decisions of circuit courts and the Supreme
Court all make clear that Cuba—not the United States–has sovereignty
over Guantanamo Bay.”); see also Rasul v. Bush, 542 U.S. 466, 475
(2004) (characterizing Guantanamo Bay as a “territory over which the
United States exercises plenary and exclusive jurisdiction, but not
‘ultimate sovereignty’”); Detainee Treatment Act of 2005, Pub. L. No.
109-148, § 1005, 119 Stat. 2680, 2740-44 (2005) (provision detailing
status review procedure for detainees entitled “Procedures for Status
Review of Detainees Outside the United States”) (emphasis added).
 35

court’s dismissal of the plaintiffs’ two constitutional claims.
D. The RFRA Claim
The plaintiffs’ final claim alleges that the defendants
“inhibited and constrained religiously motivated conduct central
to Plaintiffs’ religious beliefs,” “imposed a substantial burden on
Plaintiffs’ abilities to exercise or express their religious beliefs”
and “regularly and systematically engaged in practices
specifically aimed at disrupting Plaintiffs’ religious practices”
in violation of the Religious Freedom Restoration Act, 42
U.S.C. §§ 2000bb et seq. Compl. ¶¶ 204-208. RFRA provides
that the “Government shall not substantially burden a person’s
exercise of religion” unless it can demonstrate that “application
of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.” 42
U.S.C. § 2000bb-1(a)-(b). As noted, the district court
determined that RFRA applied to Government action at
Guantanamo, rejecting the defendants’ assertion that RFRA does
not apply to non-resident aliens.19 433 F. Supp. 2d at 59, 67. It

But see Rasul, 542 U.S. at 487 (Kennedy, J., concurring in the
judgment) (“Guantanamo Bay is in every practical respect a United
States territory . . . .”). As noted, Boumediene is currently before the
Supreme Court on certiorari review.
19
The district court found it necessary to conclude that
Guantanamo is a “territory and possession of the United States” in
order to allow the plaintiffs’ RFRA claim to proceed. Rasul, 433
F. Supp. 2d at 62-66. Guantanamo’s status, however, is not
determinative of RFRA’s applicability. Section 2000bb-2(1) defines
“government” as “a branch, department, agency, instrumentality, and
official (or other person acting under color of law) of the United
States, or of a covered entity.” Whether or not “covered entity,”
which includes “each territory and possession of the United States,”
§ 2000bb-2(2), applies to Guantanamo, the defendants are “official[s]
of the United States” and therefore RFRA applies to their actions.
 36

observed that “RFRA expressly protects the religious exercise
of ‘persons,’ a broadly applicable term, commonly including
aliens,” id. at 66, and reasoned that “because RFRA explicitly
applies to ‘persons,’ the defendants, at a bare minimum, must
demonstrate that Congress specifically intended to vest the term
‘persons’ with a definition . . . at odds with its plain meaning,”
id. at 67. It concluded that the defendants had not done so and
therefore denied their motion to dismiss the RFRA claim.20 Id.

A distinct issue is whether RFRA applies extraterritorially
regardless whether the defendants satisfy § 2000bb-2’s definition of
“government.” While there is a presumption against the
extraterritorial application of a statute absent a “clear statement” to the
contrary, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 258 (1991)
(superseded by Civil Rights Act of 1991, Pub. L. No. 102-166, § 105,
105 Stat. 1071), the legislative history indicates that RFRA may have
extraterritorial scope. See 146 Cong. Rec. S7991 (Sept. 5, 2000)
(statement of Sen. Thurmond). We do not reach this question because
we conclude that the plaintiffs are not “person[s]” within the meaning
of RFRA.
20
The district court rejected the defendants’ qualified immunity
from the RFRA claim, concluding that the plaintiffs’ allegations made
out a claim under RFRA, 433 F. Supp. 2d at 68, and that the plaintiffs’
rights under RFRA were clearly established at the time of the alleged
violations, id. at 71. Both the Supreme Court and our court have
recognized qualified immunity is available to counter not only
constitutional claims but also certain statutory claims. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (“We therefore hold that
government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”) (emphasis added);
Berry v. Funk, 146 F.3d 1003, 1014 (D.C. Cir. 1998) (“[W]e [have]
held that . . . the doctrine of qualified immunity applied to plaintiff’s
statutory claims [under the Federal Wiretap Act] in the same manner
as it applied to plaintiff’s constitutional claims.”); Tapley v. Collin,
211 F.3d 1210, 1214-15 n.9 (11th Cir. 2000) (explaining that qualified
immunity is available against statutory claim unless “Congress
 37

We must first determine whether the district court correctly
treated the plaintiffs as “person[s]” under RFRA. Although we
ordinarily “first look to the language of the law itself to
determine its meaning,” United Mine Workers v. Fed. Mine
Safety & Health Rev. Comm’n, 671 F.2d 615, 621 (D.C. Cir.
1982), cert. denied, 459 U.S. 927 (1982), RFRA’s text does not
define “person.” While the defendants do not dispute that
“person” is a broad term that has been interpreted as including
aliens, they point out that, under various constitutional
provisions, “person” does not include a non-resident alien. See,
e.g., Verdugo-Urquidez, 494 U.S. at 265 (holding that “people”
as used in the Fourth Amendment “refers to a class of persons
who are part of a national community or who have otherwise
developed sufficient connection with this country to be
considered part of that community” and thus excludes alien
located in Mexico); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir.
2004), cert. denied, 543 U.S. 1146 (2005) (“person” under Fifth
Amendment does not include “non-resident aliens who have
insufficient contacts with the United States”); People’s
Mojahedin Org., 182 F.3d at 22 (“person” under Fifth
Amendment does not apply to “foreign entity without property
or presence in this country”).
Because RFRA prohibits the Government from “substantially
burden[ing] a person’s exercise of religion” instead of simply the
exercise of religion, 42 U.S.C. § 2000bb-1(a) (emphasis added),
we must construe “person” as qualifying “exercise of religion.”
The original version of RFRA had defined “exercise of religion”
as “the exercise of religion under the First Amendment to the
Constitution.” 42 U.S.C. § 2000bb-2(4) (1994). Indeed, the
stated purpose of RFRA was “to restore the compelling interest

intended to abrogate the defense of qualified immunity to claims under
that act” and listing statutes under which qualified immunity is
available as defense). We do not reach the issue of the availability of
qualified immunity from a RFRA claim.
 38

test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its
application in all cases where free exercise of religion is
substantially burdened.” 42 U.S.C. § 2000bb(b)(1). In both
Sherbert and Yoder, the Supreme Court had held that the
Government must demonstrate a compelling interest to justify a
substantial burden on religious exercise. Sherbert, 374 U.S. at
406-07 (holding that South Carolina had to demonstrate
compelling state interest to justify unemployment compensation
statute that denied benefits unless claimant worked on Saturday
in contravention of her religious beliefs); Yoder, 406 U.S. at 215,
220-21 (holding that Wisconsin had to demonstrate compelling
state interest to justify education statute requiring Amish
children to attend formal high school in contravention of their
religious beliefs). In Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990),
however, the Court subsequently held that a generally applicable
law may abridge religious exercise regardless whether the
Government demonstrates a compelling interest therefor. See id.
at 884-85 (“Even if we were inclined to breathe into [Sherbert’s
compelling interest test] some life beyond the unemployment
compensation field, we would not apply it to require exemptions
from a generally applicable criminal law. . . . To make an
individual’s obligation to obey such a law contingent upon the
law’s coincidence with his religious beliefs, except where the
State’s interest is compelling—permitting him, by virtue of his
beliefs, to become a law unto himself—contradicts both
constitutional tradition and common sense.” (internal quotation
and citation omitted)). RFRA was then enacted to restore the
pre-Smith compelling interest test.21 Accordingly, RFRA as

21
The Congress declared that “in Employment Division v. Smith,
494 U.S. 872 (1990) the Supreme Court virtually eliminated the
requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4);
by enacting RFRA it thus intended to “restore the compelling interest
 39

originally enacted did not expand the scope of the exercise of
religion beyond that encompassed by the First Amendment.22
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court
held that RFRA could not be made applicable to the states under
section five of the Fourteenth Amendment. Therefore, the Court
determined that RFRA did not preclude municipal authorities

test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb(b)(1).
22
The plaintiffs and one group of Amici contend that RFRA was
also enacted to extend the First Amendment Rights of prisoners and
members of the military. Amicus Curiae The Baptist Joint Committee
for Religious Liberty et al. (Amici) Br. 8-11. Before RFRA a
prisoner’s free exercise claim was reviewed under the rational basis
standard, see O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
(upholding prison policy not to excuse inmate from work to attend
worship service on rational basis review), and the military was exempt
from some of the restrictions of the free exercise clause. See Goldman
v. Weinberger, 475 U.S. 503, 507 (1986) (superseded by 10 U.S.C.
§ 774) (sustaining military’s dress regulations that forbade wearing of
yarmulke because review of military regulations “is far more
deferential” than compelling interest test used for review of “similar
laws or regulations designed for civilian society”). Amici contend that
RFRA changed the standard of review for the free exercise claims of
prisoners and military service members to the compelling interest
standard. Amici Br. 8-10 (citing H.R. Rep. No. 103-88 (1993)
(“Pursuant to the Religious Freedom Restoration Act, the courts must
review claims of prisoners and military personnel under the
compelling governmental interest test.”); S. Rep. No. 103-111 (1993)
(“The intent of the Act is to restore traditional protection afforded to
prisoner’s claims prior to O’Lone.”); S. Rep. No. 103-111 (1993)
(“Under the unitary standard set forth in the act, courts will review the
free exercise claims of military personnel under the compelling
governmental interest test.”)). Assuming arguendo the plaintiffs and
the amici are correct—an issue we need not reach—the inclusion of
prisoners and members of the military within RFRA’s protection does
not affect our resolution of the plaintiffs’ RFRA claim.
 40

from enacting an ordinance governing historic preservation that
prevented a Catholic church from expanding. Id. at 511. In
response, in 2000 the Congress amended RFRA through the
Religious Land Use and Institutionalized Persons Act of 2000,
Pub. L. 106-274, 114 Stat. 803 (2000) (RLUIPA) (codified at 42
U.S.C. §§ 2000cc et seq.). RLUIPA provided that “[n]o
government shall impose or implement a land use regulation in
a manner that imposes a substantial burden on the religious
exercise of a person, including a religious assembly or
institution” unless the government demonstrates a compelling
interest therefor. 42 U.S.C. § 2000cc(a)(1).
RLUIPA also amended RFRA by altering the definition of
“exercise of religion” to include “any exercise of religion,
whether or not compelled by, or central to, a system of religious
belief.” 42 U.S.C. § 2000cc-5 (incorporated by reference by 42
U.S.C. § 2000bb-2(4)). Rather than expanding the scope of
protected religious exercise under RFRA, however, the change
in the definition of “exercise of religion” merely affirmed that
the Congress did not intend RFRA to overrule Smith in its
entirety. Before Smith, the Supreme Court had held that the
“free exercise inquiry asks whether government has placed a
substantial burden on the observation of a central religious belief
or practice.” Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)
(emphasis added); see also Yoder, 406 U.S. at 234 (noting
Court’s “consistent emphasis on the central values underlying
Religion Clauses”) (emphasis added). The Court similarly
considered whether conduct was “mandated by religious belief”
in deciding whether the Government had unconstitutionally
burdened a plaintiff’s free expression. Hobbie v. Unemployment
Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987) (quoting
Thomas v. Rev. Bd. of Ind. Employment Sec. Div., 450 U.S. 707,
718 (1981) (emphasis in original)).
In Smith, the Court also rejected applying the compelling
interest standard “only when the conduct prohibited is ‘central’
 41

to the individual’s religion,” declaring that “[i]t is no more
appropriate for judges to determine the ‘centrality’ of religious
beliefs before applying a ‘compelling interest’ test in the free
exercise field, than it would be for them to determine the
‘importance’ of ideas before applying the ‘compelling interest’
test in the free speech field . . . . As we reaffirmed only last
Term, ‘[i]t is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith, or the validity of
particular litigants’ interpretations of those creeds.’” 494 U.S. at
886-87 (alteration in Smith) (quoting Hernandez, 490 U.S. at
699). When the Congress enacted RFRA to overrule Smith,
some courts interpreted RFRA as having restored not only the
compelling interest standard but also the centrality limitation.
See, e.g., Mack v. O’Leary, 80 F.3d 1175, 1178-79 (7th Cir.
1996) (collecting cases). RLUIPA’s definition of “exercise of
religion” as “any exercise of religion, whether or not compelled
by, or central to, a system of religious belief” made clear that
centrality was not required. RFRA, then, both as originally
enacted and as amended by RLUIPA in 2000, was not intended
to expand the scope of free exercise of religion beyond that
protected by the First Amendment pre-Smith.
Because RFRA’s purpose was thus to restore what, in the
Congress’s view, is the free exercise of religion guaranteed by
the Constitution, “person” as used in RFRA should be interpreted
as it is in constitutional provisions. Cf. Wachovia Bank v.
Schmidt, 546 U.S. 303, 315-316 (2006) (“[U]nder the in pari
materia canon of statutory construction, statutes addressing the
same subject matter generally should be read ‘as if they were one
law.’” (quoting Erlenbaugh v. United States, 409 U.S. 239, 243
(1972))); United States v. Ursery, 518 U.S. 267, 304-05 (1996)
(“[T]he Double Jeopardy Clause is part of the same Amendment
as the Self-Incrimination Clause, and ought to be interpreted in
pari materia.”). Construing “person” as used in the Fifth
 42

Amendment,23 the Supreme Court held almost sixty years ago
that German nationals who were convicted of war crimes and
held at a U.S. army base in Germany were not “persons” under
the Fifth Amendment and rejected the notion “that the Fifth
Amendment confers rights upon all persons, whatever their
nationality, wherever they are located and whatever their
offenses.” Johnson v. Eisentrager, 339 U.S. at 783.24 More
recently, the Supreme Court held that “people” as used in the
Fourth Amendment25 does not include non-resident aliens. In
United States v. Verdugo-Urquidez, the Court held that the
Fourth Amendment did not apply to the DEA’s search and
seizure of an alien’s Mexican residence. 494 U.S. 259, 269
(1990). Citing Eisentrager’s “rejection of extraterritorial
application of the Fifth Amendment,” the Court explained that
“[i]f such is true of the Fifth Amendment, which speaks in the
relatively universal term of ‘person,’ it would seem even more
true with respect to the Fourth Amendment, which applies only
to ‘the people.’” Id; see also Boumediene, 476 F.3d at 991-92

23
“No person shall . . . be deprived of life, liberty, or property,
without due process of law . . . .” U.S. Const. amend. V.
24
The Supreme Court reversed this Court’s opinion in Eisentrager
v. Forrestal, 174 F.2d 961 (D.C. Cir. 1949), which had given an
expansive interpretation to “person.” See id. at 963. Our concurring
colleague believes that “nowhere [in Eisentrager] did the Court rely
on the definition of ‘person.’” Concurrence at 6. But the Supreme
Court rejected a broad definition of “person” in no uncertain terms.
See Eisentrager, 339 U.S. at 783; see also id. (“American citizens
conscripted into the military service are . . . stripped of their Fifth
Amendment rights . . . . Can there be any doubt that our foes would
also have been excepted, but for the assumption ‘any person’ would
never be read to include those in arms against us?”).
25
“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated . . . .” U.S. Const. amend. IV.
 43

(finding it “‘well established that certain constitutional
protections available to persons inside the United States are
unavailable to aliens outside our geographic borders.’” (quoting
Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).
We believe that RFRA’s use of “person” should be
interpreted consistently with the Supreme Court’s interpretation
of “person” in the Fifth Amendment and “people” in the Fourth
Amendment to exclude non-resident aliens. Because the
plaintiffs are aliens and were located outside sovereign United
States territory at the time their alleged RFRA claim arose,26 they
do not fall with the definition of “person.” Accordingly, the
district court erred in denying the defendants’ motion to dismiss
the plaintiffs’ RFRA claim.
For the foregoing reasons, we affirm the district’s court’s
dismissal of counts I, II, III, IV, V and VI of the plaintiffs’
complaint and reverse the district court’s denial of the
defendants’ motion to dismiss count VII thereof.
So ordered.

26
See supra note 18.
 BROWN, Circuit Judge, concurring: I join Parts I, II–A and
II–B of the opinion. I write separately because I believe special
factors foreclose plaintiffs from bringing a Bivens action and
because I disagree that the term “person” limits the scope of the
Religious Freedom Restoration Act (“RFRA”).

I

Under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), a federal court can
only fashion a damages action for constitutional violations
where no “special factors counsel[ ] hesitation” in doing so.
Chappell v. Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens,
403 U.S. at 396). Those factors do not relate to “the merits of
the particular remedy” being sought, but involve “the question
of who should decide whether such a remedy should be
provided.” Bush v. Lucas, 462 U.S. 367, 380 (1983). In cases
where these special factors exist, we do not reach the underlying
merits of plaintiffs’ claims because we simply decline to usurp
Congress’s authority to create damages actions. See Wilkie v.
Robbins, 127 S. Ct. 2588, 2608 (2007) (because Bivens does not
give plaintiff a cause of action, “there is no reason to enquire
further into the merits of [plaintiff’s] claim or the asserted
defense of qualified immunity”); Lucas, 462 U.S. at 390;
Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir.
1985) (because special factors foreclose a Bivens action, “[w]e
do not reach the question whether the protections of the
Constitution extend to noncitizens abroad”). Unfortunately, the
majority ignores this important separation-of-powers principle
and focuses entirely on whether plaintiffs’ constitutional claims
are meritorious. See maj. op. 28–35.1

1
Nothing in the majority’s opinion forecloses the special factors
argument. If the Supreme Court limits or overturns this court’s
constitutional holding in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.
2007), cert. granted, 127 S. Ct. 3078 (2007), future defendants should
not hesitate to raise this argument.
 2

While the Supreme Court has created Bivens remedies
for traditional Fifth and Eighth Amendment claims, it has
“consistently refused to extend Bivens liability to any new
context or new category of defendants.” See Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 68–69 (2001) (emphasis added). For
example, in United States v. Stanley, 483 U.S. 669 (1987), the
Court held that a former serviceman could not bring a Fifth
Amendment claim against unknown federal officers for secretly
giving him LSD. In reaching this conclusion, it explained that
Congress’s failure to provide adequate alternative remedies is
“irrelevant” where “congressionally uninvited intrusion into
military affairs by the judiciary is inappropriate.” Id. at 683.

Applying the special factors inquiry to this case is
particularly straightforward because of this court’s decision in
Sanchez-Espinoza. In that case, we refused to create a Bivens
action for Nicaraguans who brought claims against U.S.
government officials for supporting the Contras. As then-Judge
Scalia explained:

[T]he special needs of foreign affairs must stay our hand in
the creation of damage remedies against military and
foreign policy officials for allegedly unconstitutional
treatment of foreign subjects causing injury abroad. The
foreign affairs implications of suits such as this cannot be
ignored—their ability to produce what the Supreme Court
has called in another context “embarrassment of our
government abroad” through “multifarious pronouncements
by various departments on one question.” Baker v. Carr,
369 U.S. 186, 226 (1962). Whether or not the present
litigation is motivated by considerations of geopolitics
rather than personal harm, we think that as a general matter
the danger of foreign citizens’ using the courts in situations
such as this to obstruct the foreign policy of our government
 3

is sufficiently acute that we must leave to Congress the
judgment whether a damage remedy should exist.

770 F.2d at 209 (emphasis added). The present case involves
the method of detaining and interrogating alleged enemy
combatants during a war—a matter with grave national security
implications. Permitting damages suits by detainees may allow
our enemies to “obstruct the foreign policy of our government.”
Moreover, dealing with foreign relations is primarily delegated
to the executive and legislative branches, see U.S. CONST. art. I,
§ 8, cls. 11–16; id. art. II, § 2, and creating a damages action
could produce “multifarious pronouncements by various
departments.” Nor does our government’s unanimous
condemnation of torture answer this concern, since where to
draw that line is the subject of acrimonious debate between the
executive and legislative branches. Treatment of detainees is
inexorably linked to our effort to prevail in the terrorists’ war
against us, including our ability to work with foreign
governments in capturing and detaining known and potential
terrorists. Judicial involvement in this delicate area could
undermine these military and diplomatic efforts and lead to
“embarrassment of our government abroad.” Accordingly, all
of the special factors we identified in Sanchez-Espinoza apply
to this case and plaintiffs cannot bring their claims under Bivens.
 4

II

A

The majority holds plaintiffs cannot bring a RFRA claim
because they are not “person[s]” within the meaning of that
statute. Yet, “[a] fundamental canon of statutory construction is
that, unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.” Perrin
v. United States, 444 U.S. 37, 42 (1979). RFRA does not define
“person,” so we must look to the word’s ordinary meaning.
There is little mystery that a “person” is “an individual human
being … as distinguished from an animal or a thing.”
WEBSTER’S NEW INTERNATIONAL DICTIONARY 1686 (1981).
Unlike the majority, I believe Congress “[did not] specifically
intend[] to vest the term ‘persons’ with a definition … at odds
with its plain meaning.” Rasul v. Rumsfeld, 433 F. Supp. 2d 58,
67 (D.D.C. 2006).

The majority does not point to a single statute defining
“person” so narrowly as to exclude nonresident aliens from its
ambit, and nothing in RFRA’s history suggests Congress
focused on the term’s scope here. RFRA originally provided
that “[g]overnment shall not substantially burden a person’s
exercise of religion” unless such a burden is “the least restrictive
means of furthering [a] compelling governmental interest.” 42
U.S.C. § 2000bb-1 (1994) (emphasis added). It defined
“exercise of religion” as “the exercise of religion under the First
Amendment to the Constitution.” Id. § 2000bb-2(4) (emphasis
added). The reference to the “First Amendment” made it clear
that persons who did not have First Amendment rights were not
protected by RFRA. Given this clear textual basis, the term
“person” did no work as a limiting principle—“First
Amendment” did the job.
 5

In the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) of 2000, Pub. L. No. 106-274, 114 Stat. 803,
Congress amended RFRA’s definition of “exercise of religion”
to cover “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief,” and removed the term
“First Amendment.” See id. §§ 7(a), 8(7)(A), 114 Stat. 806,
807. This change was meant to “clarify[ ] issues that had
generated litigation under RFRA” by providing that “[r]eligious
exercise need not be compulsory or central to the claimant’s
religious belief system.” H.R. REP. NO. 106-219, at 30 (1999);
see also Adkins v. Kaspar, 393 F.3d 559, 567–68 & n.34 (5th
Cir. 2004) (citing pre-RLUIPA cases requiring “the religious
exercise burdened to be ‘central’ to the religion”). Congress
wanted to expand RFRA’s protections to a broader range of
religious practices, see Navajo Nation v. U.S. Forest Serv., 479
F.3d 1024, 1033 (9th Cir. 2007); there is no indication it wanted
to broaden the universe of persons protected by RFRA.
However, by removing the term “First Amendment” from
RFRA, Congress inadvertently deleted the textual hook
precluding persons who did not have First Amendment rights
from asserting RFRA claims.

The panel majority attempts to cure the problem created by
Congress’s careless amendment by constricting the meaning of
the term “person.” This boils down to a claim that, by removing
the term “First Amendment” from RFRA’s definition of
“exercise of religion,” Congress sub silentio changed RFRA’s
definition of “person.” But this transforms statutory
interpretation into a game of whack-a-mole: a deleted textual
hook does not simply re-appear in another statutory term.

Finding no other support for its constricted definition of
“person,” the majority turns to decisions interpreting
constitutional provisions: Johnson v. Eisentrager, 339 U.S. 763
(1950) (Fifth Amendment), and United States v.
 6

Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment).
Eisentrager rejected this circuit’s conclusion that the breadth of
the term “person” in the Fifth Amendment expanded the
coverage of the Due Process Clause beyond its traditional limits.
Nevertheless, nowhere in its extensive discussion did the Court
rely on the definition of “person.”2 Its holding turned on the
conventional understanding of the Fifth Amendment, the “full
text” of that Amendment, and the foreign policy complexities of
allowing aliens to assert constitutional rights. Id. at 782–83.3
Moreover, Eisentrager interpreted the Due Process Clause;
RFRA implements the Free Exercise Clause. The term “person”
does not appear in the Free Exercise Clause, see U.S. CONST.
amend. I (“Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof
… .”), and thus the definition of “person” cannot be the reason
aliens held abroad do not have free exercise rights, see
Boumediene, 476 F.3d at 993 (implying Guantanamo detainees
do not have First Amendment rights even though “[t]he First
Amendment’s guarantees of freedom of speech and free exercise
of religion do not mention individuals”).

2
Similarly, none of the other Fifth Amendment cases the
majority cites rely on the definition of “person.” See Jifry v. FAA, 370
F.3d 1174, 1182–83 (D.C. Cir. 2004) (not mentioning the term
“person” in holding nonresident aliens with insufficient contacts do
not have Fifth Amendment rights); People’s Mojahedin Org. of Iran
v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (same for
foreign entities).
3
In fact, the Eisentrager Court repeatedly used the term
“person” in its common meaning. See id. at 768 n.1 (citing cases
brought on behalf of “persons,” referring to “German enemy aliens”);
id. at 783 (“The Court of Appeals has cited no authority whatever for
holding that the Fifth Amendment confers rights upon all persons
….”).
 7

Verdugo is even less helpful to the majority. Unlike
Eisentrager, Verdugo did rely on a definitional analysis,
explaining that the Fourth Amendment did not apply to
nonresident aliens outside of our borders, in part, because “the
people” referred to in the Amendment identifies a “class of
persons who are part of a national community or who have
otherwise developed sufficient connection with this country to
be considered part of that community.” 494 U.S. at 265
(emphasis added). While “the people” are merely a “class of
persons,” the relevant inquiry for RFRA purposes is “who are
‘persons’?” The answer is obvious— “persons” are individual
human beings, of whom the American people are just one class.

B

While the majority’s approach is untenable, the plaintiffs
still do not prevail. RFRA’s proscription that “[g]overnment
shall not substantially burden a person’s exercise of religion”
and RLUIPA’s new definition of “exercise of religion” as “any
exercise of religion, whether or not compelled by, or central to,
a system of religious belief,” leave no textual basis for
prohibiting suits brought by non-resident aliens held at
Guantanamo, or foreign nationals who work for American
officials on NATO military bases, or, arguably, jihadists our
soldiers encounter on foreign battlefields.4 While “statutory
language represents the clearest indication of Congressional

4
The term “government” provides no limiting basis since RFRA
defines this term as including an “official (or other person acting under
color of law) of the United States, or of a covered entity.” 42 U.S.C.
§ 2000bb-2(1). Defendants, the Secretary of Defense and high-
ranking military officers, are unquestionably officials of the United
States. Moreover, as the majority points out, since defendants are
officials of the United States, it is irrelevant whether Guantanamo Bay
Naval Base is a “covered entity.” Maj. op. 35 n. 19.
 8

intent,” we may go beyond the text in those “rare cases” where
a party can show that “the literal application of a statute will
produce a result demonstrably at odds with the intentions of its
drafters.” Nat’l Pub. Radio, Inc. v. FCC, 254 F.3d 226, 230
(D.C. Cir. 2001) (internal quotation omitted).

The unusual drafting history of RFRA and RLUIPA make
this one of those rare cases. RFRA originally only provided for
suits for violation of First Amendment rights, which did not
include intrusions on the free exercise of those in plaintiffs’
position. See Cuban Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d
1412, 1428 (11th Cir. 1995). There is no doubt that RLUIPA’s
drafters, in changing the definition of “exercise of religion,”
wanted to broaden the scope of the kinds of practices protected
by RFRA, not to increase the universe of individuals protected
by RFRA. See H.R. REP. NO. 106-219, at 30; Adkins, 393 F.3d
at 567–68 & n.34; Navajo Nation, 479 F.3d at 1033. Literal
application of RFRA would force us to hold Congress’s careless
drafting inadvertently expanded the scope of RFRA plaintiffs.
Such a result is “demonstrably at odds with the intentions of
[RLUIPA’s] drafters.” See Nat’l Pub. Radio, 254 F.3d at 230.

Even if I believed RLUIPA expanded the scope of persons
protected by RFRA, I would have no trouble concluding
defendants are protected by qualified immunity.5 There was
strong reason for defendants to believe RFRA originally did not
apply to plaintiffs. While RLUIPA changed RFRA, it was far

5
There is some uncertainly about whether qualified immunity is
available to federal officials sued under RFRA. See Kwai Fun Wong
v. United States, 373 F.3d 952, 977 (9th Cir. 2004) (“Neither this court
nor any other court of appeals has decided whether qualified immunity
is available to a federal government official sued under RFRA.”). In
this case, however, Plaintiffs have assumed that qualified immunity is
available and have thus waived any argument to the contrary.
 9

from clearly established that this change expanded the class of
persons protected by RFRA.

C

Accepting plaintiffs’ argument that RFRA imports the
entire Free Exercise Clause edifice into the military detention
context would revolutionize the treatment of captured
combatants in a way Congress did not contemplate. Yet, the
majority’s approach is not much better. It leaves us with the
unfortunate and quite dubious distinction of being the only court
to declare those held at Guantanamo are not “person[s].” This
is a most regrettable holding in a case where plaintiffs have
alleged high-level U.S. government officials treated them as less
than human.

In drafting RFRA, Congress was not focused on how to
accommodate the important values of religious toleration in the
military detention setting. If Congress had focused specifically
on this challenge, it would undoubtably have struck a different
balance: somewhere between making government officials’
pocketbooks available to every detainee not afforded the full
panoply of free exercise rights and declaring those in our
custody are not “persons.” It would not have created a RFRA-
like damage remedy, but it likely would have prohibited, subject
to appropriate exceptions, unnecessarily degrading acts of
religious humiliation. It would have sought to deter such acts
not by compensating the victims, but by punishing the perpetra-
tors or through other administrative measures. See, e.g., Ronald
W. Reagan National Defense Authorization Act for Fiscal Year
2005, Pub. L. No. 108-375, §§ 1091 to 1092, 118 Stat. 1811,
2068–71 (2004) (to be codified at 10 U.S.C. § 801 note)
(creating an administrative regime to prevent unlawful treatment
of detainees); Detainee Treatment Act of 2005, Pub. L. 109-148,
§ 1003(a), 119 Stat. 2739 (to be codified at 42 U.S.C. § 2000dd)
 10

(“No individual in the custody or under the physical control of
the United States Government, regardless of nationality or
physical location, shall be subject to cruel, inhuman, or degrad-
ing treatment or punishment.”). Judicial interpretation without
text is at best a stop-gap; at worst, a usurpation. In 2000, when
Congress amended RFRA, jihad was not a prominent part of our
vocabulary and prolonged military detentions of alleged enemy
combatants were not part of our consciousness. They are now.
Congress should revisit RFRA with these circumstances in
mind.