RFRA at Guantanomo Bay

A federal court in Washington D.C. ruled this week that the Religious Freedom Restoration Act (RFRA) applies to government conduct at Guantanomo Bay. The decision in Rasul v. Rumsfeld, (2006 WL 1216668) is not yet available online. The plaintiffs are detainees who allege various violations of RFRA, including harassment while worshipping, the shaving of their religious beards, and placement of the Koran in the toilet while they were watching. The key question in Rasul was the geographic scope of RFRA. In a result that flows naturally from recent Supreme Court precedent in Rasul v. Bush, the district court ruled that RFRA applies to Guantanomo Bay. Here is an excerpt:

The defendants argue that RFRA does not apply extraterritorially, specifically, to the U.S. Naval Base at Guantanamo Bay…. The defendants argue that Congress intended for RFRA to apply only to government action in the continental United States…. RFRA defines the government to include, inter alia, covered entities. 42 U.S.C. § 2000bb-2(1). In turn, covered entities means “the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States.” To determine whether the term “covered entities” includes GTMO, the court must engage in statutory interpretation. Although the defendants argue that RFRA applies only in the continental United States, that reading of the statute makes little sense…. RFRA defines the term “government” to include, “a branch, department, agency, instrumentality, and official … of the United States, or a covered entity.” In essence, this provision reaffirms RFRA’s application to United States governmental action. Geographically, RFRA extends to “each territory and possession of the United States.” Because RFRA applies to U.S. government action in the continental United States via § 2000bb-2(1) and § 2000bb-3(a), the defendants’ call for the court to construe territory and possession to mean the continental United States renders that phrase meaningless….

As in the present case, in Rasul I, the government urged the Supreme Court to adhere to the ” ‘longstanding principle of American law’ that congressional legislation is presumed not to have extraterritorial application unless such intent is clearly manifested.”… The Court, relying on the explicit terms of the United States’ lease agreement for the Guantanamo Bay Naval Base, ruled that “[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no traction … with respect to persons detained within the territorial jurisdiction of the United States.” In essence, the United States exercises perhaps as much control as it possibly could short of “ultimate sovereignty” over GTMO. As stated above, RFRA applies to “each territory and possession of the United States.” If that language is to have any meaning, it must include lands such as GTMO, over which the United States exercises not some control or some jurisdiction, but “complete jurisdiction and control,” i.e. “plenary and exclusive jurisdiction.”