No.

(.¢o rt

SHAFIQ RASUL, et al.,

Petitioners,

V.

RICHARD MYERS, Air Force General, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARIWITH APPENDIX

Michael RatnerShayana KadidalCENTER FOR

CONSTITUTIONAL RIGHTS666 Broadway, 7th FloorNew York, New York 10012(212) 614-6438

Eric L. LewisCounsel of RecordBAACH ROBINSON &

LEWIS PLLC1201 F Street, N.W., Suite 500Washington, D.C. 20004(202) 833-8900

Counsels for Petitioners Dated: August 24, 2009

THE LEX GROUPDc ¯ 1750 K Street N.W. ¯ Suite 475 ¯ Washington, DC 20006

(202) 955-0001 ¯ (800) 815-3791 ¯ Faro (202) 955-0022 ¯www.thelexgroupdc.com

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QUESTIONS PRESENTED

Whether the Court of Appeals erred in failingto reach the question of whether detainees atGuant~namo have the constitutional right notto be tortured in light of this Court’s vacatur,on the basis of its decision in Boumediene v.Bush, of the Court of Appeals’ previousdecision in this case that detainees have noconstitutional rights?

Whether the Court of Appeals erred in holdingthat petitioners’ claim for religious abuse andhumiliation at Guant~namo was notactionable under the Religious FreedomRestoration Act, 42 U.S.C. §2000bb, et seq.,because they are not "persons"?

Whether the Court of Appeals erred in holdingthat respondents are entitled to qualifiedimmunity because petitioners’ right not to betortured was not "clearly established" at thetime of their detention?

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PARTIES TO THE PROCEEDING

Petitioners:

Shafiq RasulAsif IqbalRhuhel AhmedJamal A1-Harith

Respondents:

Former Secretary of DefenseDonald Rumsfeld

Air Force General Richard Myers (Ret.)

Army Major General Geoffrey Miller (Ret.)

Army General James T. Hill (Ret.)

Army Major GeneralMichael E. Dunlavey (Ret.)

Army Brigadier General Jay Hood

Marine Brigadier General Michael Lehnert

Army Colonel Nelson J. Cannon

Army Colonel Terry Carrico

Army Lieutenant Colonel William Cline

Army Lieutenant Colonel Diane Beaver (Ret.)

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3. Intervenors:

None

4. Amici:

The following Amici presented their views tothe Court of Appeals:

The National Institute of Military Justice,Brigadier General (Ret.) David M. Brahms,Lieutenant Commander (Ret.) Eugene R.Fidell, Commander (Ret.) David Glazier,Elizabeth L. Hillman, Jonathan Lurie, andDiane Mazur.

Susan Benesch, Lenni B. Benson, ChristopherL. Blakesley, Arturo J. Carlllo, Roger S. Clark,Marjorie Cohn, Rhonda Copelon, Angela B.Cornell, Constance de la Vega, MartinFlaherty, Hurst Hannum, Dina Haynes,Deena Hurwitz, Ian Johnstone, DanielKanstroom, Bert Lockwood, Beth Lyon, JennyS. Martinez, Carlin Myer, Noah BenjaminNovogrodsky, Jamie O’Connell, Jordan J.Faust, Naomi Roht-Arriaza, MegSatterthwaite, Ron Slye, Beth Van Schaack,David Weissbrodt, and Ellen Yaroshefsky, TheCenter for Justice and Accountability, HumanRights Watch, the Allard K. LowensteinInternational Human Rights Clinic, andPhysicians for Human Rights.

The Baptist Joint Committee for ReligiousLiberty, the National Association ofEvangelicals, the National Council ofChurches, the American Jewish Committee,the Stated Clerk of the General Assembly ofthe Presbyterian Church (U.S.A.), the GeneralConference of Seventh-Day Adventists, andthe United States Conference of CatholicBishops.

Charles Carpenter, Judith Brown Chomsky,George M. Clarke III, Jerry Cohen, JoshuaColangelo-Bryan, George Daly, Jeffrey Davis,Josh Denbeaux, Mark Denbeaux, StuartEisenberg, Elizabeth P. Gilson, CandaceGorman, Eldon Greenberg, C. Clark Hodgson,Jr., Gaillard T. Hunt, ChristopherKaragheuzoff, Ramzi Kassem, Samuel C.Kauffman, Ellen Lubell, Howard J. Manchel,Louis Marjon, Edwin S. Matthews, Brian J.Neff, Kit A. Pierson, Noah H. Rashkind,Martha Rayner, Marjorie M. Smith, CliveStafford Smith, Mark S. Sullivan, DorisTennant, Robert C. Weaver, Angela C. Vigil,Reprieve, CagePrisoners, and James Yee.

V

CORPORATE DISCLOSURE STATEMENT

There are no parents or subsidiaries whosedisclosure is required under Rule 29.6.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING ..........................ii

CORPORATE DISCLOSURE STATEMENT ............v

TABLE OF CONTENTS ............................................vi

TABLE OF AUTHORITIES ......................................xi

PETITION FOR WRIT OF CERTIORARI .................1

OPINION BELOW ......................................................1

STATEMENT OF BASISFOR JURISDICTION .................................................1

CONSTITUTIONAL PROVISIONSAND STATUTES INVOLVED ...................................1

STATEMENT OF THE CASE ....................................2

I. THE CLAIMS: RELIGIOUSABUSE AND TORTURE ATGUANT~’qAMO ....................................4

II. THE TORTURE MEMOS .....................8

III. DECISIONS OF THE DISTRICTCOURT .................................................10

vii

IV. DECISIONS OF THE COURTOF APPEALS .......................................11

REASONS FOR GRANTING THE PETITION .......13

THE COURT OF APPEALSREBUFFED THIS COURT’SMANDATE TO RECONSIDERTHIS CASE IN LIGHT OFBO UMEDIENE ...................................14

II. THE COURT OF APPEALS’DECISION THATPETITIONERS ARE NOT"PERSONS" FOR PURPOSESOF THE RELIGIOUSFREEDOM RESTORATIONACT MISAPPLIES THATSTATUTECONTRAVENESLONGSTANDINGCOURTREAFFIRMED

AND

SUPREMEAUTHORITY

INBO UMEDIENE ...................................18

III. PRISONERS IN U.S. CUSTODYAT GUANT/~NAMO HAVE ACONSTITUTIONAL RIGHTNOT TO BE TORTURED, ANDOFFICIALS WHO VIOLATETHAT RIGHT ARE NOTENTITLED TO QUALIFIEDIMMUNITY ..........................................26

oooVlll

no Any Reasonable Officer WouldKnow that Torture andDeliberate Abuse Are IllegalUnder All Sources of Law ...................29

So The Court Should Make Clearthat Government Officials WhoOrder Torture Are Not Entitledto Qualified Immunity .........................35

CONCLUSION ..........................................................40

APPENDICES

APPENDIX A (Order of the United States Courtof Appeals for the District of ColumbiaCircuit,Apr. 24, 2009) ............................................................la

APPENDIX B (Opinion of the United StatesCourt of Appeals for the District of ColumbiaCircuit,Apr. 24, 2009) ............................................................3a

APPENDIX C (Order for Supplemental Briefingof the United States Court of Appeals for theDistrict of Columbia Circuit,Dec. 22, 2008) ..........................................................23a

APPENDIX D (Letter from William K. Suter,Clerk of the Court, to Eric Lewis Re:Granting Petition for a Writ of Certiorari,Dec. 15, 2008) ..........................................................25a

APPENDIX E (Opinion of the United StatesCourt of Appeals for the District of ColumbiaCircuit,Jan. 11, 2008) ..........................................................27a

APPENDIX F (Judgment of the United StatesDistrict Court for the District of Columbia,July 20, 2006) ..........................................................91a

APPENDIX G (Order of the United StatesDistrict Court for the District of Columbia,July 10, 2006) ..........................................................92a

APPENDIX H (Order and MemorandumOpinion of the United States District Court forthe District of Columbia Circuit,May 8, 2006) ............................................................94a

APPENDIX I (Order and Memorandum Opinionof the United States District Court for theDistrict of Columbia,Feb. 6, 2006) ..........................................................123a

APPENDIX J (Letter from William K. Suter, toEric L. Lewis,July 9, 2009) ..........................................................169a

X

APPENDIX K (Constitutional and StatutoryProvisions)

U.S. CONST. amend. V ................................171a

U.S. CONST. amend. VIII ...........................172a

42 U.S.C. § 2000bb, et. seq .........................175a

APPENDIX L (Plaintiffs’ Complaint in theUnited States District Court for the District ofColumbia,Oct. 27, 2004) ........................................................179a

APPENDIX M (Excerpts of Initial Report of theUnited States to the United NationsCommittee Against Torture,Oct. 15, 1999) ........................................................244a

APPENDIX N (Excerpts of the U.S. Departmentof State, Second Periodic Report of the UnitedStates of America to the Committee AgainstTorture,May 6, 2005) ..........................................................251a

APPENDIX O (Brief of Amici Curiae Counsel forGuant~namo Detainees, Reprieve,Cageprisoners, and James Yee in Support ofPlaintiffs-Appellants in the United StatesCourt of Appeals for the District of ColumbiaCircuit,Mar. 20, 2007) .......................................................257a

TABLE OF AUTHORITIES

Page(s)

CASES

A10dah v. United States,321 F.3d 1134 (D.C. Cir. 2003) ......................25

Am. Dredging Co. v. Miller,510 U.S. 443 (1994) ........................................17

Anderson v. Creighton,483 U.S. 635 (1987) ........................................36

Boumediene v. Bush,476 F.3d 981 (D.C. Cir. 2007), rev’d,553 U.S. __, 128 S. Ct. 2229 (2008) .....passim

Bridge v. Phoenix Bond & Indem. Co.,553 U.S. ~, 128 S. Ct. 2131 (2008) ...............4

Brown v. Mississippi,297 U.S. 278 (1936) ..................................29, 32

City of Boerne v. Flores,521 U.S. 507 (1997) ........................................21

De Lima v. Bidwell,182 U.S. 1 (1901) ............................................23

Dorrv. United States,195 U.S. 138 (1904) ........................................23

xii

Employment Div. Dep’t of HumanResources of Or. v. Smith,

494 U.S. 872 (1990) ........................................21

FDIC v. Meyer,510 U.S. 471 (1994) ........................................20

Filartiga v. Pena-Irala,630 F.2d 876 (2d Cir. 1980) ............................30

Goldman v. Weinberger,475 U.S. 503 (1986) ........................................21

Hamdan v. Rumsfeld,415 F.3d 33 (D.C. Cir. 2005), rev’d,548 U.S. 557 (2006) ........................................25

Harlow v. Fitzgerald,457 U.S. 800 (1982) ........................................39

Hebert v. Louisiana,272 U.S. 312 (1926) ........................................29

Hope v. Pelzer,536 U.S. 730 (2002) ........................................37

Johnson v. Eisentrager,339 U.S. 763 (1950) ............................11, 15, 33

Malley v. Briggs,475 U.S. 335 (1986) ........................................39

O’Lone v. Estate of Shabazz,482 U.S. 342 (1987) ........................................22

o.oXIII

Pearson v. Callahan,129 S. Ct. 808 (2009) ....................13, 16, 17, 18

Rasul v. Bush,542 U.S. 466 (2004) ................................passim

Rasul v. Myers,512 F.3d 644 (D.C. Cir. 2008) ......................1, 2

RasuI v. Myers,563 F.3d 527 (D.C. Cir. 2009) ..........................1

Reid v. Covert,354 U.S. 1 (1957) ............................................33

Saucier v. Katz,533 U.S. 194 (2001) ..................................16, 17

Schlup v. Delo,513 U.S. 298 (1995) ........................................17

Snyder v. Massachusetts,291 U.S. 97 (1934) ..........................................32

Sosa v. Alvarez Machain,542 U.S. 692 (2004) ..................................29, 30

United States v. Lanier,520 U.S. 259 (1997) ..................................37, 38

United States v. Rutherford,442 U.S. 544 (1979) ........................................21

United States v. Verdugo-Urquidez,494 U.S. 259 (1990) ........................................32

xiv

Zadvydas v. Davis,533 U.S. 678 (2001) ........................................32

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. I ....................................21, 22, 28

U.S. CONST. amend. IV .................................12, 23, 28

U.S. CONST. amend. V .......................................passim

U.S. CONST. amend. VI .............................................28

U.S. CONST. amend. VIII ........................................1, 8

U.S. CONST. amend. XIV .....................................27, 29

STATUTES

18 U.S.C. § 242 ..........................................................37

28 U.S.C. § 1254(1) .....................................................1

42 U.S.C. § 2000bb, et seq .................................passim

RULE

FED. R. CIV. P. 54(b) ..................................................11

TREATY

United Nations Convention Against Tortureand Other Cruel, Inhuman or DegradingTreatment or Punishment,2 U.S. Dep’t of State, Treaties in Force at 182(2007), available athttp ://www.state.gov/documents/organization]89668.pdf .......................................................................... 9, 30

OTHER AUTHORITY

Brief of the United States as Amicus Curiae,City of Boerne v. Flores, 1997 U.S.S. Ct.Briefs LEXIS 185 (Jan. 10, 1997) ............................22

Initial Report of the United States to theUnited Nations Committee Against Torture(Oct. 15, 1999) ...........................................................31

Second Periodic Report of the United States tothe United Nations Committee AgainstTorture (May 6, 2005) ...............................................32

S. Rep. 103-111, as reprinted in 1993U.S.C.C.A.N. 1892 .....................................................21

Uniform Code of Military Justice .............................36

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aS~d

PETITION FOR WRIT OF CERTIORARI

Petitioners Shafiq Rasul, Asif Iqbal, RhuhelAhmed, and Jamal A1-Harith respectfully petitionfor a writ of certiorari to review the judgment of theUnited States Court of Appeals for the District ofColumbia Circuit.

OPINION BELOW

The opinions below are reported as Rasul v.Myers, 563 F.3d 527 (D.C. Cir. 2009) (Appendix("App.") B), and Rasul v. Myers, 512 F.3d 644 (D.C.Cir. 2008) (App. E).

STATEMENT OF BASIS FOR JURISDICTION

The United States Court of Appeals for theDistrict of Columbia Circuit issued its opinion onremand on April 24, 2009. Petitioners’ application tothis Court to extend the time for filing a petition forwrit of certiorari until August 24, 2009, was grantedon July 9, 2009. App. J. The Court has jurisdictionpursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS ANDSTATUTES INVOLVED

U.S. Const. amend. V.

U.S. Const. amend. VIII.

Religious Freedom Restoration Act, 42 U.S.C.§ 2000bb, et seq.

STATEMENT OF THE CASE

This case seeks damages from formerSecretary of Defense Donald Rumsfeld and variousmembers of the military chain of command fortorture and religious abuse suffered by petitionersduring their imprisonment at the Guant~namo BayNaval Station ("Guanthnamo") between 2002 and2004. This is the second time this case has beenbefore the Court.

In 2008, based upon its now-overruled holdingthat alien detainees at Guant~namo possess noconstitutional rights, Boumediene v. Bush, 476 F.3d

981 (D.C. Cir. 2007), rev’d, 553 U.S. __, 128 S. Ct.2229 (2008), the United States Court of Appeals forthe District of Columbia Circuit directed thedismissal of petitioners’ claims on grounds thatpetitioners are not "persons" entitled to protection oftheir right to worship under the Religious FreedomRestoration Act, 42 U.S.C. § 2000bb, et seq.("RFRA"), and are not entitled to be free from tortureunder the Fifth Amendment. Rasul v. Myers, 512F.3d 644 (D.C. Cir. 2008). The Court of Appeals alsoheld that respondents are immune from liability fortheir torture and religious humiliation of petitioners.By order of December 15, 2008, this Court grantedcertiorari, vacated the Court of Appeals’ ruling, andremanded the case for reconsideration in light of thisCourt’s decision in Boumediene v. Bush, 553 U.S. __,128 S. Ct. 2229 (2008).

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On remand, while stating its view thatBoumediene is irrelevant to this case because it wasconfined only to habeas corpus and therefore aliensat Guant~namo had no other rights, the Court ofAppeals declined to base its disposition on theapplicability of Boumediene to the constitutionalviolations alleged here. The Court of Appeals ruledinstead that this case should be dismissed ongrounds of qualified immunity.

The Court of Appeals’ manifest refusal toabide by this Court’s mandate and give due effect toBoumediene on the constitutional issues raised inthis case is reason enough to grant this writ: toaffirm the Court’s authority and compel an inferiorcourt to abide by its mandate. But there are evenmore compelling issues which demand this Court’sattention, issues at the core of ordered liberty: (i)whether detainees imprisoned by the United Statesat Guant~namo have a right to be free from abuseand humiliation in the practice of their religion; (ii)whether Guant~namo detainees have aconstitutional right to be free from torture; and (iii)whether public officials who knowingly violate theserights can escape accountability for their conduct byraising the shield of qualified immunity when theycannot assert this defense in good faith.

The torture and religious humiliation ofMuslim detainees at Guant~namo stands as auniquely shameful episode in our history. Thispetition enables the Court to remedy that stain onthe moral authority of our nation and its laws, tooverrule an obdurately insupportable exercise instatutory construction that effectively renders these

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petitioners, and all other detainees at Guant~namo,non-persons, and to facilitate accountability for theseterrible acts. Six years ago, Shafiq Rasul petitionedthis Court for the right to challenge his confinementthrough habeas corpus. Rasul v. Bush, 542 U.S. 466(2004) ("RasuI ~’). This Court recognized that thestatutory right of habeas corpus extends toGuant~namo. Id. at 481. Today, he seeksvindication of his statutory right to religious dignityand his right under the Constitution not to betortured by U.S. government officials. These areuniversally recognized, irreducible minima that ourlegal system must provide to those under its control.

THE CLAIMS: RELIGIOUS ABUSEAND TORTURE AT GUANT~NAMO

The complaint below was filed by fourinnocent British citizens who were incarcerated atGuant~namo from January 2002 to March 2004.App. 185a, 207a. Petitioners never took up armsagainst the United States, never received anymilitary training, and have never been members ofany terrorist group. App. 183a, 191a-92a. Theyhave never been charged with any crime. App. 185a.They were never determined to be enemycombatants. Id.1 Respondents are former Secretaryof Defense Donald Rumsfeld and high-rankingmilitary officers who ordered and supervised

1 The complaint was dismissed on respondents’ motion to

dismiss. Accordingly, at this stage of the proceedings, allfactual allegations of the complaint must be presumed to betrue. Bridge v. Phoenix Bond & Indem. Co., 553 U.S. __, 128 S.Ct. 2131, 2135 n.1 (2008)

petitioners’ incarceration and mistreatment atGuant/~namo. App. 192a-97a.

Petitioners Rasul, Iqbal, and Ahmed areboyhood friends from the town of Tipton in England.App. 197a. At the time they were detained, theywere 24, 20 and 19 respectively. App. 191a-92a.Iqbal had gone to Pakistan in September 2001 to getmarried. App. 198a. Ahmed joined him to be hisbest man. Id. Rasul was in Pakistan studyingcomputer science. Id. All three went to Afghanistanto assist in providing relief for the humanitariancrisis that arose in 2001. App. 198a-99a. InAfghanistan they were captured by Afghan warlordRashid Dostum, who is widely reported to havedelivered prisoners to U.S. forces for the purpose ofcollecting a per capita bounty offered by the U.S.military. App. 183a, 199a. Dostum delivered Rasul,Iqbal, and Ahmed into U.S. custody in late 2001.App. 200a-01a.

Petitioner Al-Harith was also born and raisedin England. App. 192a. He is a website designer inManchester. App. 183a. In 2001, he traveled toPakistan for a religious retreat. App. 183a-84a.When he was advised to leave the country because ofgrowing animosity toward the British, he bookedpassage on a truck to Turkey, from which he plannedto fly home to England. App. 184a. His truck washijacked, and A1-Harith was forcibly brought toAfghanistan and turned over to the Taliban. Id. Hewas accused of being a British spy, imprisoned inisolation, and beaten by his Taliban guards. Afterthe Taliban fled in the wake of the U.S. invasion ofAfghanistan, the British Embassy’s plans to

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evacuate A1-Harith were preempted when U.S.forces arrived at the prison and took him intocustody. App. 184a-85a.

All four petitioners were held andinterrogated by the United States under appallingconditions in Afghanistan before they weretransported to Guant~namo, where they weresystematically tortured and abused pursuant todirectives from respondent Rumsfeld and themilitary chain of command. App. 186a-90a, 201a-07a. For more than two years, petitioners werebrutalized by conduct that included:

repeated beatings (including with riflebutts and while shackled andblindfolded);

prolonged solitary confinement,including isolation in total darkness;

deliberate exposure to extremes of heatand cold;

threats of attack from unmuzzled dogs;

forced nakedness;

repeated body cavity searches;

¯ denial of food and water;

deliberate disruption and deprivation ofsleep;

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shackling in painful stress positions forextended periods;

injection of unknown substances intotheir bodies; and

deliberate interference with anddenigration of their religious beliefs andpractices, including the deliberatesubmersion of the Koran in a filthytoilet bucket.

App. 207a-25a.

Petitioners were deliberately prevented fromfulfilling their daily obligation to pray, as prayerswere frequently interrupted by shouts, taunts, andthe playing of earsplitting music over the camppublic address system. App. 241a. The chaining ofpetitioners in the "short-shackling" position was notonly extremely painful but also prevented them fromtaking the required posture for prayer. App. 217a-18a. Forced nakedness violated the Muslim tenetrequiring modesty, particularly during prayer. App.241a. Petitioners’ beards were shaved forcibly (App.205a), an infringement of Muslim religious practice.Desecration of the Koran was frequent andsystematic, with numerous incidents of Korans beingsprayed with high-power water hoses, splashed withurine, and thrown in the toilet bucket. App. 224a,241a. These were calculated and illegal displays ofdisrespect toward the essential symbol of Islam.

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Following their release, petitioners suedrespondents for damages in the United StatesDistrict Court for the District of Columbia. App.179a-82a. The complaint asserted claims for torture,religious abuse, and other mistreatment under, interalia, the Fifth and Eighth Amendments to theConstitution, customary international law, theGeneva Conventions, and RFRA. App. 232a-42a.

II. THE TORTURE MEMOS

The insulting of Muslims in their core beliefswas not the action of rogue guards on the night shift;it represented a clear and illegal policy choice bysenior U.S. officials systematically to denigratedetainees’ Mushm beliefs and cultural practices.Department of Defense documents reveal that theSecretary of Defense personally ordered many ofthese practices.

In their complaint, petitioners identifiedmemoranda and reports generated, received, andapproved by respondents, which outlined, planned,authorized, and implemented the program of tortureand abuse directed at petitioners and otherGuant~inamo detainees.2 For example, on December2, 2002, respondent Rumsfeld approved amemorandum specifically intended forimplementation at Guant~namo, authorizingnumerous illegal and unprecedented interrogationmethods, including putting detainees in stress

2 Since the filing of the complaint in 2004, numerousadditional memoranda and reports have been made publicfurther detailing respondents’ direct role in sanctioningpetitioners’ torture and abuse.

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positions for up to four hours; forcing detainees tostrip naked; intimidating detainees with guard dogs;interrogating them for 20 hours at a time; deprivingthem of sleep; forcing them to wear hoods; shavingtheir heads and beards; incarcerating them indarkness and silence; exposing them to extremes ofhot and cold; and using what was euphemisticallycalled "mild, non-injurious physical contact." App.187a-88a. Petitioners were subjected to all of theseabusive practices - and more.

Rumsfeld subsequently withdrew thismemorandum but quickly commissioned a "WorkingGroup" to study detainee interrogation practices. Inits March 6, 2003 report, this group addressed thelegal consequences of authorizing these methods.App. 188a-89a.3 It detailed the requirements ofinternational and domestic law governinginterrogations, including the Geneva Conventions,the United Nations Convention Against Torture,customary international law, and numerous sectionsof the U.S. criminal code. Id. The reportacknowledged that the described interrogationtechniques and conditions of imprisonment wereillegal, but it reauthorized them and sought toidentify putative "legal doctrines under the FederalCriminal Law that could render specific conduct,otherwise criminal not unlawful." App. 188a(internal quotations omitted). The purpose of thereport, like the other memos prepared and approvedby respondents, was to assist respondents in evadingrecognized legal prohibitions of their intendedconduct. These documents can only be seen as a

revised version of the Report was issued on April 4, 2003.

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shameful nadir for American law, exposingrespondents’ conscious and calculated awarenessthat the practices they directed were illegal and inviolation of clearly established legal rights.

III. DECISIONS OF THE DISTRICTCOURT

In the district court, respondents moved todismiss the complaint, asserting, inter alia, thatplaintiffs had no rights under the Constitution.Respondents further contended that they wereentitled to qualified immunity with respect to theconstitutional and RFRA claims. The district courtdismissed petitioners’ constitutional claims based onqualified immunity, holding that, regardless ofwhether detainees have a right not to be torturedthat is protected under the Constitution, such rightscould not have been clearly established until thisCourt decided Rasul I. App. 165a.4

The district court denied respondents’ motionto dismiss petitioners’ RFRA claim, holding that thecomplaint did allege actionable conduct. App. 95a-96a. As the court observed, "[f]lushing the Korandown the toilet and forcing [petitioners] to shavetheir beards falls comfortably within the conductprohibited ... by RFRA." App. l17a-18a. The courtfurther held that RFRA’s applicability to U.S.military facilities and to U.S. civilian and militaryofficers, including those serving at Guant~namo, wasclear under the plain language of the statute and

4 Petitioners’ Complaint also asserted claims under

international law and the Geneva Conventions. These claimsare not at issue in this Petition.

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therefore well-established at the time thatpetitioners were abused. App. 118a-22a.

IVt DECISIONS OF THE COURT OFAPPEALS

Respondents filed a timely notice of appeal ofthe district court’s order denying dismissal on thebasis of qualified immunity with respect to theRFRA claim. On petitioners’ request, the districtcourt certified its decision on the remaining issuespursuant to Fed. R. Cir. P. 54(b), allowing thepetitioners to cross-appeal. App. 91a-93a.

Based on its now overruled opinion inBoumediene, 476 F.3d 981, the Court of Appeals heldin 2008 that petitioners had no right under theConstitution not to be tortured, noting that"Guantanamo detainees lack constitutional rightsbecause they are aliens without property or presencein the United States." App. 60a. As in Boumediene,the Court of Appeals invoked its categorical readingof Johnson v. Eisentrager, 339 U.S. 763 (1950), assupporting its "property or presence" requirementand rejected the proposition that this Court’sdecision in Rasul I had distinguished Eisentrager inthe context of Guant~namo. App. 62a-65a. TheCourt of Appeals held in the alternative that, even ifGuant~namo detainees had a constitutional rightnot to be tortured, that right was not clearlyestablished and therefore respondents were entitledto qualified immunity. App. 65a-67a.

The Court of Appeals reversed the districtcourt’s ruling that denied respondents’ motion to

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dismiss the RFRA claims, with the panel majorityholding that petitioners "do not fall with[in] thedefinition of ’person’" under RFRA (App. 78a) andtherefore they lacked standing to invoke RFRA’sprotections. The Court of Appeals did not applyordinary principles of statutory construction to thebroad term "person." Instead, it reasoned thatRFRA was in essence a codification of constitutionalfree exercise principles, and therefore the word"person" should be imbued with a constitutionalconstruction consistent with the Court of Appeals’reading of this Court’s Fourth and Fifth Amendmentjurisprudence, which, the Court of Appealsconcluded, categorically excluded recognition of anyconstitutional rights of aliens at Guant~namo. App.76a-78a.

Judge Brown wrote a separate concurrencecriticizing the majority’s failure to apply ordinaryprinciples of statutory construction in reaching itsconclusion that Guant~mamo detainees are not"persons." Judge Brown observed that the panelmajority’s ruling on the scope of RFRA left the Courtof Appeals, "with the unfortunate and quite dubiousdistinction of being the only court to declare thoseheld at Guantanamo are not ’person[s].’ This is amost regrettable holding in a case where plaintiffshave alleged high-level U.S. government officialstreated them as less than human." App. 89a(alteration in original).

On December 15, 2008, this Court grantedcertiorari, vacated the judgment below, andremanded the case to the Court of Appeals forfurther consideration in light of the Court’s recent

13

decision reversing the Court of Appeals inBoumediene. App. D. After supplemental briefing,the Court of Appeals issued a new per curiumopinion on April 24, 2009. App. B. Despite thisCourt’s express instructions that it consider theeffect of Boumediene, the Court of Appeals declinedto base its decision on whether its earlier rejection ofpetitioners’ constitutional claims could withstandanalysis under Boumediene. App. 4a-8a. Althoughthe court expressed its view in dicta thatBoumediene was explicitly confined to habeascorpus, the court announced that it would avoiddeciding the case based on any consideration of theconstitutional issue and instead would confine itsgrounds for dismissal to qualified immunity. App.8a-9a. The court justified shifting its grounds fordecision and ignoring this Court’s mandate on theauthority of Pearson v. Callahan, 129 S. Ct. 808(2009). App. 8a-9a.

REASONS FOR GRANTING THE PETITION

The sordid spectacle of American soldierstorturing and humiliating captives at Abu Ghraib issurpassed only by the revelation that atGuant~namo similar despicable practices wereconceived, authorized, and systematicallyimplemented by senior officials of the U.S.government. The tragic irony that such inhumanitycould be perpetrated by American officials hasbrought shame to our country, has disappointed andangered our allies, and has emboldened our enemies.The Court of Appeals’ decision compounds that harmby holding that these leaders are immune fromhaving to account for their actions and reiterating,

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albeit in dicta, that these plaintiffs have no right toreligious dignity or to be free from torture. It nowfalls to this Court, the last haven for affirmation ofour constitutional order, to hold these officialsresponsible and to affirm these fundamental rights.

Without doubt, this is an uncomfortable andunwelcome task. Yet this Court has been a bulwarkin a series of cases that have refused to allowGuant~namo to be left as an indelible rebuke to ourclaim to be a beacon of freedom. This case presentsa unique and compelling opportunity for this Courtto affirm that torture at Guant~namo was a violationof fundamental rights and to make clear to inferiorcourts that its constitutional jurisprudenceregarding Guant~namo must be taken seriously.Left in place, the Court of Appeals’ decision will be afinal assertion of judicial indifference in the face ofcalculated torture and humiliation of Muslims intheir religion. The decision cannot stand.

THE COURT OF APPEALSREBUFFED THIS COURT’SMANDATE TO RECONSIDER THISCASE IN LIGHT OF BOUMEDIENE.

Despite this Court’s explicit direction to theCourt of Appeals to consider this Court’s interveningdecision in Boumediene in reevaluating petitioners’claims, the Court of Appeals simply declined to do so.Instead, the Court of Appeals decided the case onremand on an alternative ground, namely thatpetitioners’ claims are precluded by qualifiedimmunity. This disposition misapplies this Court’sprecedent and flouts its authority.

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As an initial matter, the Court of Appealsbelow ruled that this Court had already decided thevery issue it had framed on remand. According tothe Court of Appeals, since this Court confined itsholding in Boumediene to "the extraterritorial reachof the Suspension Clause" and "disclaimed anyintention to disturb existing law" as to any otherconstitutional provision, it was not open to the Courtof Appeals to apply the Boumediene analysis here.App. 6a-7a. The court further concluded that it wasbeyond its power to determine whether Boumedienehas "eroded the precedential force of Eisentrager andits progeny" on which it had earlier based its opinionthat petitioners have no constitutional rights. App.7a.

In short, the Court of Appeals viewed itself asprecluded by this Court’s precedent from doingprecisely what this Court directed it to do. Plainly,this Court was fully aware that Boumediene dealtwith habeas corpus, but it nonetheless directed theCourt of Appeals to examine how Boumedieneaffected the analysis here, where habeas is not inissue. Yet this appears not to have entered theCourt of Appeals’ calculus. Nor did the Court ofAppeals consider that this Court had itself declaredin Boumediene how the application of Eisentragerand its progeny must be modified. This Court didnot leave it to the Court of Appeals to determinewhether Eisentrager’s authority had been eroded -this Court had already clearly held that it had - butdirected it to consider how that erosion affected thiscase.

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The Court of Appeals further sought to justifyits refusal to consider the impact of Boumediene onpetitioners’ constitutional claims on grounds thatPearson v. Callahan, 129 S. Ct. 808 (2009), allowedit to avoid the constitutional issues and resolve thecase solely on immunity grounds. Yet Pearson didnot address the circumstance presented here -where the court below had already ruled that noconstitutional right existed and its decision wasvacated by this Court with explicit directions toreconsider that very issue in light of more recentauthority. Moreover, even without regard to thiscircumstance, Pearson would not support avoidanceof the constitutional issue here.

Pearson did not reverse the sequenceapproved in Saucier v. Katz, 533 U.S. 194 (2001),which required the courts to resolve the underlyingissue of whether the claimant’s constitutional rightswere violated before reaching the question whetherthe defendant has qualified immunity. Pearsonmerely held that the Saucier sequence is not "aninflexible requirement" and the lower courts maymake a reasonable exercise of discretion to reverse itin appropriate cases. 129 S. Ct. at 813. Pearsonnonetheless reaffirmed that the Saucier sequence "isoften appropriate" and "often beneficial," and itdescribed the many circumstances that continue tofavor it, id. at 818, most of which are clearlyapplicable here. Yet the Court of Appeals hereinvoked Pearson as conferring unfettered authorityfor avoiding any constitutional issue without givingany consideration to the circumstances of theparticular case.

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A genuine exercise of discretion requirescareful weighing of the competing considerations forand against the alternative choices. E.g., Am.Dredging Co. v. Miller, 510 U.S. 443, 455 (1994).Dissenting in Schlup v. Delo, 513 U.S. 298 (1995),Justice Scalia observed that an exercise of discretion"may not be done without considering relevantfactors and giving a ’justifying reason.’" Id. at 348.Yet here, the court below made no pretense ofconsidering whether the specific circumstances ofthe instant case favored avoidance of theconstitutional issue by addressing immunity first.This is the antithesis of the analysis required byPearson.

None of the concerns set out in Pearson thatmight counsel against reaching the constitutionalissue is present here. This is not a case in which theissue "is so fact-bound that the decision provideslittle guidance for future cases;" it is not a casewhere the issue is otherwise pending before a highercourt or where it rests on an "uncertaininterpretation of state law;" and it is not a case,petitioners submit, where the arguments are poorlypresented. Pearson, 129 S. Ct. at 819-20. Instead,this is precisely the type of case which Pearson itselfrecognized should follow the Saucier sequence.

As the Pearson Court observed, the Sauciertwo-step procedure requiring resolution of theconstitutional issue first "is especially valuable withrespect to questions that do not frequently arise incases in which a qualified immunity defense isunavailable." Id. at 818. Here, recognition of theconstitutional right of Guant~namo detainees to be

18

free from torture at the hands of governmentofficials is largely, if not entirely, "dependent oncases in which the defendant may seek qualifiedimmunity." Id. at 821-22. This is not a case like theones identified by this Court in Pearson where theconstitutional issue is likely otherwise to bepresented in a criminal action, a suit against amunicipality, or an action for injunctive relief. Ifcourts are allowed to follow the path set by the Courtof Appeals, there may never be a proper occasion forrecognizing the constitutional right at issue herebecause qualified immunity will almost invariably bein issue. The principle that there is a constitutionalright for detainees not to be tortured thus will likelynever be addressed. This is reason enough alone forgranting the writ.

II. THE COURT OF APPEALS’DECISION THAT PETITIONERSARE NOT "PERSONS" FORPURPOSESOF THE RELIGIOUSFREEDOM RESTORATION ACTMISAPPLIESTHAT STATUTE ANDCONTRAVENES LONGSTANDINGSUPREME COURT AUTHORITYREAFFIRMED IN BOUMEDIENE.

RFRA provides a cause of action to any"person" whose religious exercise has beensubstantially burdened by the government. App.176a (42 U.S.C. § 2000bb-l(c)). It precludes thegovernment or any of its officers from infringing on aperson’s exercise of religion, unless the restriction isthe "least restrictive means of furthering [a]compelling governmental interest." App. 175a (42

19

U.S.C. § 2000bb-l(b)(2)). As the district courtrecognized, RFRA on its face provides a cause ofaction for petitioners in the circumstances presentedhere. The complaint alleged that respondentsdeliberately infringed on petitioners’ religiousexercise by, inter alia, interfering with their prayer,shaving their beards, forcing nudity, and desecratingtheir Korans. App. 205a, 224a, 241a.

In its initial decision, the Court of Appealsrejected the district court’s straightforwardapplication of RFRA. Instead, it held that, becauseGuant~namo detainees have no constitutionalrights, they also have no rights under RFRA. Onremand, the court reaffirmed this position in onlyslightly modified form. It held that, becauseGuant~namo detainees have no constitutional rightsother than the right of habeas corpus recognized inBoumediene, they also have no rights under RFRA.This decision wasmanifestly wrong for twoindependent reasons.

First, the court’s decision on remand is insharp conflict with this Court’s authority onstatutory construction. In Rasul I, this Court dealtwith a virtually identical instance of statutoryconstruction - the question whether the habeasstatute applied at Guat~namo. Like RFRA, thehabeas statute has a constitutional analog, and thusthe Court was faced, as it is here, with the questionwhether the statute should be read to be co-extensive with the constitutional provision. As theCourt expressly held in Rasul I with respect to theapplication of the federal habeas statute to detentionof these petitioners:

2O

Considering that [§ 2241] draws nodistinction between Americans andaliens held in federal custody, there islittle reason to think that Congressintended the geographical coverage ofthe statute to vary depending on thedetainee’s citizenship. Aliens held atthe base, no less than Americancitizens, are entitled to invoke thefederal courts’ authority under § 2241.

542 U.S. at 481 (footnote omitted). No less so here.RFRA, like the habeas statute, draws no distinctionbetween citizens and aliens, and nothing in RFRAsuggests any variance in its geographical reachbased on a plaintiffs citizenship.

By its express terms, RFRA protects all"persons" from government interference with theirexercise of religion. As Judge Brown noted in herconcurrence, the majority’s construction of the term"persons" to exclude petitioners contradicts the"fundamental canon of statutory construction" that"unless otherwise defined, words will be interpretedas taking their ordinary, contemporary, commonmeaning." App. 83a. Where an unambiguous wordis undefined in a statute, it must be construed "inaccordance with its ordinary or natural meaning."FDIC v. Meyer, 510 U.S. 471, 476 (1994). Given its"ordinary or natural meaning," "person" is a broadterm that encompasses human beings regardless oftheir place of residence or citizenship. WhereCongress intends to limit the term "person" bycitizenship or residence, it knows how to do so.

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This Court has expressly instructed thatexceptions are not to be judicially implied into astatute unless the absence of the exception wouldlead to an absurd result. United States v.Rutherford, 442 U.S. 544, 555 (1979). The Court ofAppeals ignored this instruction and, as it did in itsnow-reversed decision in Rasul I, fashioned its ownGuant~namo exception to a statute that includes nosuch condition or qualification.

The Court of Appeals’ ruling conflicts as wellwith this Court’s construction of the scope of RFRA.As this Court observed in City of Boerne v. Flores,521 U.S. 507 (1997), RFRA’s "restrictions apply toevery agency and official .... [and] to all federal andstate law, statutory or otherwise." Id. at 532.Contrary to the Court of Appeals’ conclusion, RFRAwas not enacted merely to be co-extensive with theFirst Amendment, which would have made thestatute superfluous. Rather, it was enacted tosupplement the First Amendment by extendingprotection to religious practices that this Court hadexpressly held were not protected by the FirstAmendment. App. 173a-74a (42 U.S.C. § 2000bb);see S. Rep. 103-111, at 4, as reprinted in 1993U.S.C.C.A.N. at 1893. Prior to the passage of RFRA,this Court had held that the First Amendment didnot protect the religious practice of using illegaldrugs against the effect of a law of neutralapplication, Employment Div. Dep’t of HumanResources of Or. v. Smith, 494 U.S. 872 (1990), thatit did not protect the rights of military officers towear yarmulkes while in uniform, Goldman v.Weinberger, 475 U.S. 503 (1986), and that it did notprotect the rights of Muslim prisoners to attend

22

Friday services, OZone v. Estate of Shabazz, 482U.S. 342 (1987). With its deliberately broad andunconditional language, RFRA protects these andmany other practices. It applies in prisons; itapplies to the military; it applies to all governmentofficers wherever situated; it applies to all territoriesand possessions of the United States. And,petitioners submit, it applies in any setting wherethe government exercises unchallenged authorityand control. Far from simply duplicatingconstitutional protections, RFRAexpresslysupplements and extends protectionbeyond thescope of the First Amendment.5

The language of the statute iterates the broadpurpose "to provide a claim or defense to personswhose religious exercise is substantially burdened bygovernment." App. 175a (42 U.S.C. § 2000bb(b)(2)).The Court of Appeals’ conclusion that RFRA "did notexpand the scope of the exercise of religion beyondthat encompassed by the First Amendment," App.73a, is thus demonstrably incorrect and entirely atodds with the purpose, effect, and express languageof RFRA.

But the decision below is wrong for a second,far more troubling, reason. Having wronglyconcluded that RFRA merely codifies theConstitution, the Court of Appeals then compoundedits error by limiting RFRA’s meaning based on its

5 This construction of RFRA has been adopted by the United

States, which has urged it in this Court. See Brief of theUnited States as Amicus Curiae, City of Boerne v. Flores, 1997

U.S.S. Ct. Briefs LEXIS 185, at *70, 71 n.40 (Jan. 10, 1997)(citing cases).

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incorrect (and now overruled) construction of Fourthand Fifth Amendment jurisprudence. Based on itsown decision in Boumediene, in its initial decisionhere the Court of Appeals had held that, becausenonresident aliens are not "persons" under theFourth or Fifth Amendments, they have no statutoryrights under RFRA. App. 78a. On remand, while,on the one hand, declaring that it would not decidethe predicate constitutional issue, the Court ofAppeals, on the other hand, reaffirmed its earlierconstruction of RFRA which turned precisely on itsnow-vacated holding that detainees at Guant~namohave no constitutional rights.

As this Court stated in Rasul I, andreaffirmed in reversing Boumediene, the Court ofAppeals was plainly wrong in holding categoricallythat Guant~namo detainees have no enforceableconstitutional rights. In Boumediene, this Courtgrounded the recognition of those rights inlongstanding jurisprudence beginning with theInsular Cases, e.g., De Lima v. Bidwell, 182 U.S. 1(1901); Dorr v. United States, 195 U.S. 138 (1904),and their progeny, which more than a century agohad determined that the applicability of aconstitutional provision outside the sovereignterritory of the United States "depends upon theparticular circumstances, the practical necessities,and the possible alternatives which Congress hadbefore it and, in particular, whether judicialenforcement of the provision would be impracticableand anomalous." Boumediene, 128 S. Ct. at 2255(internal quotations omitted). Reaffirming its priorholding in Rasul I, this Court again ruled that theconstitutional right to habeas corpus applies at

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Guant~namo because it is under the government’s"complete and total control." Id. at 2262.

Had the Court of Appeals honored this Court’smandate to reconsider its earlier decision in light ofBoumediene, this would have exposed the falsepremise on which the court had construed themeaning of "persons" in the RFRA statute. In itsinitial decision, the Court of Appeals’ syllogism wasthat "persons" must be confined to those who enjoyconstitutional rights and cannot include aliens atGuant~namo because, under the court’s premise,they categorically have no such rights. In itsdecision on remand, the Court of Appeals concludedthat Boumediene’s recognition of Guant~namodetainees’ constitutional right of habeas was limitedto that single right and refused to examine whetherBoumediene’s analytical basis undercuts the court’scategorical premise. Plainly it does. Like habeascorpus, the right to be free from official religiousabuse at Guant~namo would certainly not be"impracticable and anomalous." Id. at 2255.

Certiorari is warranted here not simplybecause a lower court fundamentally misconstrued astatute. Rather, the Court of Appeals has, onceagain, directly and obdurately in conflict with thisCourt’s jurisprudence, rejected the proposition thatdetainees have even the most basic of rights andconcluded that government action at Guant~namo issubject to no constitutional constraints oraccountability.

Since detentions at Guant~namo commencedin 2002, the Court of Appeals has been faced with

25

several cases asserting rights on behalf of detainees.In each instance, the Court of Appeals has held thatdetainees do not possess the right being asserted.E.g., Al Odah v. United States, 321 F.3d 1134 (D.C.Cir. 2003); Hamdan v. Rumsfeld, 415 F.3d 33 (D.C.Cir. 2005); Boumediene, 476 F.3d 981. On certiorari,this Court has reversed each of those decisions andaffirmed that the detainees possess cognizable rightsunder the laws of the United States and under theConstitution. Rasul I, 542 U.S. at 473; Hamdan v.Rumsfeld, 548 U.S. 557, 625-26 (2006); Boumediene,128 S. Ct. at 2262. Nevertheless, despite theserulings and this Court’s explicit instruction toreconsider its stance in this case, the Court ofAppeals ignored both the principles of statutoryconstruction that should have resolved this case inpetitioners’ favor and the clear line of this Court’sjurisprudence rejecting the Court of Appeals’ blanketrepudiation of detainee rights. Petitionersrespectfully submit that an unequivocal affirmationof this Court’s Guant~namo jurisprudence - and itsunequivocal application to the fundamental rights tobe free from torture and religious abuse - is a criticalreason for the Court to grant review in this case.Petitioners further submit that a holding thatGuant~namo detainees are not "persons" cannot beleft in place.

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III. PRISONERS IN U.S.CUSTODY ATGUANTANAMO HAVE ACONSTITUTIONAL RIGHT NOTTO BE TORTURED, ANDOFFICIALS WHO VIOLATE THATRIGHT ARE NOT ENTITLED TOQUALIFIED IMMUNITY.

Whatever euphemisms are applied, whateverabstractions are invoked, petitioners weredeliberately tortured at the behest and direction ofthe former Secretary of Defense and senior officersin the chain of command. Respondents conceivedand implemented their program of torture and abusein violation of the express policy statements of thePresident, applicable military regulations, theConstitution, U.S. and international law, and anypretense of honor or decency. Not only shouldrespondents (or any reasonable officers serving inrespondents’ positions) have known of the illegalityof their conduct, the complaint is replete withallegations that respondents in fact did know. Theyrequested, wrote, and received memorandum aftermemorandum, all detailing the various ways inwhich their conduct and orders were violations ofapplicable law. App. 186a-90a. It was for this veryreason that each report or memorandum tried toconcoct a post hoc basis for immunity forrespondents’ unconstitutional and illegal acts.

In its initial decision, the Court of Appealsheld that petitioners have no constitutional right tobe free of torture inflicted by government officers. Inits decision on remand, the court avoided thequestion whether Boumediene undercuts its earlier

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thesis and ruled that in any event the right not to betortured was not clearly established whenpetitioners were detained. This Court should makeclear that officials cannot take refuge inconstitutional ignorance or purported ambiguitywhen they are attempting to evade rather thancomply with the law.

In Boumediene, this Court rejected the Courtof Appeals’ categorical conclusion that theConstitution stops at the water’s edge and madeclear that its holding was rooted in over a century ofjurisprudence. On remand here, while purporting toeschew a definitive ruling on the constitutionality oftorture at Guant~namo, the Court of Appeals did nothesitate to announce its view that Boumediene islimited to the Suspension Clause and has noapplicability to other constitutional rights. Thecourt below thereby not only disregardedBoumediene’s underlying analysis and the historicalprecedent on which it was explicitly based, butignored this Court’s express statement that, like therights guaranteed under the Suspension Clause, "thesubstantive guarantees of the Fifth and FourteenthAmendments" apply to foreign nationals, likepetitioners, "who have the privilege of litigating inour courts." 128 S. Ct. at 2246. Indeed, in reachingits conclusion, the Court of Appeals disregarded itsown previous decision in Boumediene, whichrecognized that there is no principled distinctionbetween the right to habeas corpus guaranteedunder the Suspension Clause and other rightsguaranteed under the Constitution. As the Court ofAppeals observed:

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[T]he dissent offers thedistinction that the Suspension Clauseis a limitation on congressional powerrather than a constitutional right. Butthis is no distinction at all.Constitutional rights are rights againstthe government and, as such, arerestrictions on governmental power.Consider the First Amendment .... Likethe Suspension Clause, the FirstAmendment is framed as a limitationon Congress: "Congress shall make nolaw .... " Yet no one would deny that theFirst Amendment protects the rights tofree speech and religion andassembly .... There is the notion that theSuspension Clause is different from theFourth, Fifth, and Sixth Amendmentsbecause it does not mention individualsand those amendments do (respectively,"people," "person," and "the accused") ....That cannot be right.

476 F.3d at 993 (internal citations omitted). Thus,the Court of Appeals accepted in Boumediene thathabeas rights could not be segregated from otherfundamental rights; this Court’s decision inBoumediene should have made analyticallyimpossible the Court of Appeals’result-drivenholding in the remand of this case.

In view of the Court of Appeals’ disregard forBoumediene, it is critical that this Court not justvacate but strongly reject the Court of Appeals’earlier contrary ruling, to which it continued to

29

adhere on remand, that respondents’ conduct atGuant~namo was not constrained by theConstitution and, accordingly, that they were free totorture and abuse petitioners without risk ofpersonal liability.

AQ Any Reasonable OfficerWould Know that Tortureand Deliberate Abuse AreIllegal Under All Sources ofLaw.

The Constitution prohibits torture bygovernment officials of persons in governmentcustody wherever they may be held. The principlethat government officials cannot torture prisoners isnot new. As long ago as 1936, this Court consideredwhether the right not to be tortured was"fundamental" for the purpose of imposing it on theStates under the Due Process Clause of theFourteenth Amendment. Brown v. Mississippi, 297U.S. 278 (1936). In that case, the Court held thattorture is inconsistent with the "fundamentalprinciples of liberty and justice which lie at the baseof all our civil and political institutions." Id. at 286(quoting Hebert v. Louisiana, 272 U.S. 312, 316(1926)). Thus, the right not to be tortured wasprotected by the Fourteenth Amendment, andtorture was banned as a matter of state as well asfederal practice.

Torture is also "universally condemned" underinternational law. Sosa v. Alvarez Machain, 542U.S. 692, 762 (2004) (Breyer, J., concurring). U.S.courts have recognized for more than twenty-five

3O

years that no foreign sovereign has the authority toorder torture. In Filartiga v. Pena-Irala, 630 F.2d876 (2d Cir. 1980), cited with approval by this Courtin Sosa, 542 U.S. at 738 n.29, the Second Circuitheld that "there are few, if any, issues ininternational law today on which opinion seems to beso united as the limitations on a state’s power totorture persons held in its custody." 630 F.2d at 881."[F]or purposes of civil liability, the torturer hasbecome like the pirate and slave trader before himhostis humani generis, an enemy of all mankind."Id. at 890.

The United States is a signatory to theConvention Against Torture. 2 U.S. Dep’t of State,Treaties in Force at 182 (2007), available athttp ://www.state. gov/documents/organization/89668.pdf. The U.S. government has repeatedly, officially,and publicly condemned torture in any and allcircumstances and acknowledged that:

the prohibition on torture applies to theU.S. military;

"[t]orture cannot be justified byexceptional circumstances, nor can it beexcused on the basis of an order from asuperior officer"; and

"a commanding officer who orders suchpunishment would be acting outside thescope of his or her position and wouldbe individually liable for theintentional infliction of bodily andemotional harm."

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Initial Report of the United States to the UnitedNations’ Committee Against Torture (Oct. 15, 1999),App. 246a, 249a (emphasis added).

The U.S. government could not have beenmore clear in articulating the scope and nature of itsown obligations:

The United States isunequivocally opposed to the use andpractice of torture. No circumstanceswhatsoever, including war, the threat ofwar, internal political instability, publicemergency, or an order from a superiorofficer or public authority, may beinvoked as a justification for or defenseto committing torture. This is alongstanding commitment of the UnitedStates, repeatedly reaffirmed at thehighest levels of the U.S.Government .... All components of theUnited States Government areobligated to act in compliance with thelaw, including all United Statesconstitutional, statutory and treatyobligations relating to torture andcruel, inhuman or degrading treatmentor punishment. The U.S. Governmentdoes not permit, tolerate or condonetorture, or other unlawful practices, byits personnel or employees under anycircumstances. U.S. laws prohibitingsuch practices apply both when theemployees are operating in the UnitedStates and in other parts of the world.

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Second Periodic Report of the United States to theUnited Nations Committee Against Torture (May 6,2005), App. 255a-56a (emphasis added).

The prohibition against torture is not onlydeeply embedded as a matter of policy andcustomary international law, it is a bedrock norm ofconstitutional law. As the Court noted in Brown,torture "offends some principle of justice so rooted inthe traditions and conscience of our people as to beranked as fundamental." 297 U.S. at 285 (quotingSnyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

From the Insular Cases to United States v.Verdugo-Urquidez, 494 U.S. 259, 277-78 (1990)(Kennedy, J. concurring), to Rasul I, to Boumediene,this Court has for more than a century adopted afunctional analysis of what constitutional rights maybe applied outside the United States. That analysishas never been premised on rigid territorial lines buton the concept that "fundamental" rights applywhere they can practicably be enforced. And asBrown teaches, few if any rights are more"fundamental" than the right of a prisoner not to betortured. As Justice Scalia recognized in his dissentin Zadvydas v. Davis, 533 U.S. 678 (2001), a casedecided the year before petitioners were sent toGuant~namo, this norm is so obvious that, even inthe case of aliens who may be entitled to onlyminimal constitutional protection, it is certain that"they cannot be tortured." Id. at 704 (Scalia, J.dissenting). In sum, it has been long establishedthat there is an irreducible constitutional minimumthat government officials owe to human beingsunder their control - whether citizens or aliens and

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wherever that control is exercised - and thatminimum necessarily includes the prohibition oftorture.

This Court’s decision in Boumediene reaffirmsthe principle that the Constitution’s reach is notmeasured by geography but by the practicality ofenforcing its provisions wherever the governmentexercises power and control. The test is not whetherpetitioners have "property or presence" within theUnited States, but whether enforcement of theConstitution where the petitioner is located would be"impractical or anomalous." Particularly pertinenthere, the Supreme Court unequivocally rejected anyconstruction of Eisentrager as having "adopted aformalistic, sovereignty-based test for determiningthe reach of the Suspension Clause," because itwould represent "a complete repudiation" of the"functional approach" taken in the Insular Cases andReid v. Covert, 354 U.S. 1 (1957). Boumediene, 128S. Ct. at 2257-58. The Court characterized theconstricted reading of Eisentrager adopted by theCourt of Appeals as overlooking the "common threaduniting the Insular Cases, Eisentrager and Reid: theidea that questions of extraterritoriality turn onobjective factors andpractical concerns, notformalism." Id. at 2258.

As a result, the Supreme Court reaffirmed itsholding in Rasul I that Guant~namo is for allpractical purposes U.S. territory and detaineesshould be treated accordingly. It elaborated afunctional test, according protection of fundamentalconstitutional rights to detainees as long as theextension of these rights was not "impracticable or

34

anomalous." Importantly, it viewed the issue ofdetainee rights as one of separation of powers andrejected the idea that the executive branch couldcreate a legal black hole where the government couldact without constitutional constraint or reasonablejudicial oversight:

The Constitution grants Congress andthe President the power to acquire,dispose of, and govern territory, not thepower to decide when and where itsterms apply. Even when the UnitedStates acts outside its borders, itspowers are not "absolute and unlimited"but are subject "to such restrictions asare expressed in the Constitution."Abstaining from questions involvingformal sovereignty and territorialgovernance is one thing. To hold thepolitical branches have the power toswitch the Constitution on or off at willis quite another.

Id. at 2259 (internal citations omitted).

On remand, the Court of Appeals, in disregardof this Court’s direction, refused to reexaminewhether petitioners have a constitutional right to befree from government-inflicted torture in light of thisCourt’s decision in Boumediene, but the court madeit abundantly clear that it continued to adhere to aterritorial view, that the Constitution precludesrecognition of any constitutional rights of thesedetainees save the right of habeas corpus. Statedsimply, this is not a permissible reading of

35

Boumediene; it is an unwillingness to accept itspremises. This Court should not allow this decisionto stand as the last judicial word on torture atGuant~namo. Nor can such an obdurate reading ofprecedent supply a safe harbor for governmentofficials that knowingly ordered torture.

Bo The Court Should Make Clearthat Government OfficialsWho Order Torture Are NotEntitled to QualifiedImmunity.

Equally important to the condemnation ofgovernment-inflicted torture wherever it occurs isthe repudiation of the use of qualified immunity toinsulate misconduct that respondents knew waslegally wrong and morally reprehensible on thepretext that they did not know it was alsounconstitutional. At its core, qualified immunitymust rest on a genuine good faith belief that theconduct being challenged was not wrongful. Thiscase presents the Court with the opportunity tomake clear that qualified immunity cannot be usedas a stratagem to enable government officials tocreate a lawless enclave where they can knowinglyengage in despicable practices with impunity.

Respondents knew, as any civilized personwould know, and as their own duties of highgovernment office and military command require,that torture and deliberate abuse are wrong andviolate fundamental rights wherever they occur.They brought detainees to Guant~namo rather thanto a detention facility within our borders in a

36

calculated attempt to circumvent the constitutionalprovisions that forbid torture. Their memosevidence, however, that they were aware that everysource of controlling law, including U.S. criminal lawand the Uniform Code of Military Justice, expresslyprohibited torture and did apply at Guant~namo,that the conduct they were contemplating was"otherwise criminal," and that they were seekingpost hoc rationalizations and concocted defenses thatwould somehow render lawful that which wasplainly unlawful. App. 188a-89a. Respondents’gamble that Guant~namo might be recognized as ahaven for torture - where torture was concededlyillegal but possibly not unconstitutional - is not thekind of conduct that the doctrine of qualifiedimmunity is intended to protect.

The Court of Appeals relied on the absence ofany constitutional ruling directly on point thatprohibits torture at Guant~namo. But this Courthas made clear that the lack of a directly applicableprecedent does not insulate egregious conduct. InAnderson v. Creighton, 483 U.S. 635 (1987), theCourt unambiguously rejected the proposition that"an official action is protected by qualified immunityunless the very action in question has previouslybeen held unlawful." Id. at 640. For a right to beclearly established, it is enough that "the contours ofthe right" are "sufficiently clear that a reasonableofficial would understand that what he is doingviolates that right .... [I]n the light of pre-existinglaw, the unlawfulness must be apparent." Id. Therecan be no doubt that the unlawfulness of torture andabuse was clear to the Secretary of Defense andsenior military officers.

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In Hope v. Pelzer, 536 U.S. 730 (2002), prisonguards shackled prisoners to a hitching post on a hotday, conduct very similar to the "short-shackling" ofpetitioners here. App. 217a. In Hope, the guardsdefended the claims against them on the ground thatno decision had established that the Constitutionprohibited the practice. The Court held that the"obvious cruelty inherent" in the use of the hitchingpost and treatment "antithetical to human dignity...under circumstances that were both degrading anddangerous" were sufficient to put the guards onnotice of a constitutional violation. 536 U.S. at 745.In so ruling, the Court noted that defendantsknowingly violated their own regulations, whichfurther put defendants on notice and precluded theirreliance on qualified immunity. The fact that thespecific practice had never been addressed by thecourts did not afford the defendants in Hope anescape into qualified immunity. That respondents inthis action are senior government officials ratherthan prison guards in no way changes the analysis;if anything, it should apply with greater force here.

Similarly, in United States v. Lanier, 520 U.S.259 (1997), a state court judge was charged withcriminal constitutional violations pursuant to 18U.S.C. § 242. Lanier argued that he was not onnotice that the Constitution was implicated in hiscriminal conduct - sexual assault of five women whoworked in the courthouse - even though he wasaware that state criminal statutes prohibited suchbehavior. In essence, his position was that althoughhe knew his conduct was wrongful, and even illegal,he could not have known it was a constitutionalinfraction because there was no precedent on point.

38

This Court summarily rejected Lanier’s defensebecause the illegality of his conduct, if not itsunconstitutionality, was obvious. AnalogizingLanier’s due process defense to an assertion ofqualified immunity, the Court stated, "[t]he easiestcases don’t even arise. There has never been... [a]case accusing welfare officials of selling fosterchildren into slavery; it does not follow that if such acase arose, the officials would be immune fromdamages [or criminal] liabihty." 520 U.S. at 271(internal citations and quotations omitted)(alteration in original). The teaching of Lanier isclear: the torturer, the "hostis humani generis, anenemy of all mankind," like the hypothetical childslaver in Lanier, cannot rely on the absence of a caseon point.

Like the defendant in Lanier, the Court ofAppeals approached the question of qualifiedimmunity here with a single, narrow question - wasthere a case holding that torture at Guant~namoviolated specific provisions of the Constitution?Because the court answered this question in thenegative, it held that respondents could not be heldliable, regardless of the illegality of their conductunder other applicable laws. This is precisely theapproach that this Court rejected in evaluatingLanier’s substantive due process defense. If theCourt of Appeals had applied the standardenunciated in Lanier, which would have required itto accept that, irrespective of a constitutionalprecedent on point, any reasonable officer wouldknow that torture was prohibited by every othersource of law, it would have rejected respondents’qualified immunity defense.

39

While the standard is an objective one, goodfaith remains at the heart of qualified immunity;indeed, the terms qualified immunity and "goodfaith" immunity are often used interchangeably. SeeHarlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Suchimmunity is not intended to protect defendants whoengage in deliberately unlawful conduct. Malley v.Briggs, 475 U.S. 335, 341 (1986). As the Court madeclear in Harlow: "By defining the limits of qualifiedimmunity essentially in objective terms, we provideno license to lawless conduct." 457 U.S. at 819. Yeta license for lawless conduct - a license to torture,abuse, and humiliate - is precisely what respondentssought at Guant~namo. In granting review, thisCourt has the opportunity definitively to revoke that"license," extend a minimum guarantee of dignityand decency to the hundreds who remain indetention at Guant~namo, and reaffirm to the worldthat this nation will not excuse torture by our ownofficials while condemning it by others.

Respondents selected Guant~namo aspetitioners’ detention facility in a cynical attempt toavoid accountability for conduct that had long beenheld unconstitutional when it occurred in U.S.prisons. But Guant~namo is not a Hobbesianenclave where respondents could violate clearprohibitions on their conduct imposed by statute andregulations and then point to a purportedconstitutional void as a basis for immunity. It is ofcritical importance that this Court strongly affirmthat torture is unequivocally beyond the pale forofficials of the United States, wherever they may beoperating.

4O

CONCLUSION

For the foregoingrespectfully request thatpetition for writ of certiorari.

reasons, petitionersthis Court grant the

Respectfully submitted,

MICHAEL RATNERSHAYANA KADIDALCENTER FOR

CONSTITUTIONAL RIGHTS666 Broadway, 7th FloorNew York, New York 10012(212) 614-6438

Is/ERIC L. LEWISCounsel of RecordBAACH ROBINSON 8~

LEWIS PLLC1201 F Street, NWSuite 500Washington, DC 20004(202) 833-8900

Counsels for Petitioners

August 24, 2009