Federal District Court Rules on Torture Allegations

As Julian has noted (see here and here) a federal district court in Washington D.C. last week has dealt a major blow to claims for damages for alleged torture in Iraq and Afghanistan. Given the importance of the case, I wanted to flesh out the decision a little more and provide my own quick thoughts on the case.

In the case of In re Iraq and Afghanistan Detainees Litigation, Judge Hogan faced allegations by nine detainees that they were brutally tortured by American military personnel in Iraq and Afghanistan.

The case is long and complex and I will only briefly summarize it. In essence, the Court ruled that (1) the plaintiffs had no Bivens remedies for constitutional violations; (2) regarding the ATS claims, the American personnel were immune from liability under the Westfall Act because their underlying conduct (not the torture) was within the scope of their employment; (3) the claims against the United States required dismissal without prejudice because the plaintiffs had failed to exhaust administrative remedies as required under the FTCA; and (4) the Geneva Convention IV claims must fail because that treaty is not self-executing and does not provide a private right of action.

First, the Court rejected the plaintiffs’ Bivens claims. As most readers know, Bivens stands for the proposition that a plaintiff who can establish the violation of a constitutional right for which a damages remedy is an appropriate form of relief may invoke the authority of federal courts to vindicate that right against the offending official. For various reasons, the Court ruled that the detainees have no such remedy. First, the Court ruled that plaintiffs have not asserted a constitutionally protected right.

After reviewing these decisions, the Court concluded that “it is considered settled law that nonresident aliens must be within the sovereign territory of the United States to stake any claim to the rights secured by the Fifth Amendment.” And as for Eighth Amendment claims, the Court ruled that “even assuming the Eighth Amendment applied to nonresident enemy aliens, the plaintiffs cannot avail themselves of that amendment’s prohibition against cruel and unusual punishment because they were never convicted of a crime, whether a war crime or otherwise.”

Second, the Court ruled that under Sosa, the Alien Tort Statute is only a jurisdictional statute and as such, any ATS claim against a federal employee must satisfy the requirements of the Westfall Act. (The Westfall Act affords federal employees absolute immunity from tort liability for negligent or wrongful acts or omissions they commit while acting within the scope of their employment.) The Court found that the American military personnel were acting within the scope of their employment when the alleged acts of torture occurred. The Court’s argument that the defendants were entitled to immunity under the Westfall Act is nuanced, and focuses on the nature of the underlying conduct, not the unlawful act of torture itself.

Third, having upheld the Westfall immunity claims against the private defendants and substituted the United States government for those defendants, the Court further held that the plaintiffs’ claims against the United States should be dismissed without prejudice because the plaintiffs had failed to exhaust administrative remedies as required for claims against the United States under the Federal Tort Claims Act.

Fourth, the Court ruled that Geneva Convention IV is not self-executing and does not provide a private right of action. “Because Geneva Convention IV manifests an intent to be enforced through legislation or diplomacy, it is not a self-executing treaty that provides a private right for the plaintiffs to sue the defendants for money damages. The plaintiffs’ cause of action for violations of Geneva Convention IV therefore fails to state a claim for relief and will be dismissed.”

Of course this is not the last we have heard of this case. It will be quite interesting to see how the D.C. Circuit will address these claims. It would appear to me that the Court is correct about the Bivens remedies and the difficulty plaintiffs face in arguing the extraterritorial application of constitutional rights to alleged illegal conduct occurring in Afghanistan and Iraq. As Supreme Court jurisprudence currently stands, it would appear the Court is on solid ground in arguing that the plaintiffs do not enjoy the constitutional rights they assert in this case.

As for the Alien Tort Statute, the Westfall Act holding is particularly important, and if followed by other courts, could render ATS claims against federal employees extraordinarily difficult to pursue. It appears from this Court’s opinion that one of the unintended consequences of Sosa’s holding that the ATS is only a jurisdictional statute is that it removes ATS claims from the ambit of the “statutory exception” of the Westfall Act, thus requiring any ATS claim to satisfy the Westfall Act immunity defenses available for federal employees. And if the Court is correct in its broad reading of the D.C. Circuit’s opinion in Ballinger–which addresses scope of employment by focusing on the underlying conduct of interrogation rather than the unlawful act of torture–it will be the death knell of ATS claims against most federal employees. ATS claims will face requests for substitution of the United States as the defendant for the federal employees, subsuming those claims within the FTCA.