United States Court of Appeals, District of Columbia Circuit
Argued, February 21, 2014
Appeals from the United States District Court for the District of Columbia. (No. 1:08-cv-01677). (No. 1:06-cv-01996).
Russell P. Cohen argued the cause for appellants. With him on the briefs were Howard M. Ullman and Shayana D. Kadidal.
Sydney Foster, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, and Matthew M. Collette, Attorney. Sharon Swingle, Attorney, entered an appearance.
Before: TATEL and BROWN, Circuit Judges, and RANDOLPH, Senior Circuit Judge. Opinion for the Court by Circuit Judge BROWN.
Brown, Circuit Judge
As the United States enters the coda of its military
engagement in Afghanistan, we continue with our task of resolving the many legal
questions left in the wake of warfare. In this case, we assess whether certain
detainees cleared by a military tribunal but nevertheless subjected to continued
detention and allegedly abusive treatment have sufficiently alleged that those
authorizing and supervising their detention acted outside the scope of their
employment. We conclude they did not, and we affirm the decision of the district
This appeal arises from events surrounding six individuals formerly detained at the U.S. Naval Base in Guantanamo Bay, Cuba. Yuksel Celikgogus, Ibrahim Sen, Nuri Mert, Zakirjan Hasam, Abu Muhammad, and Sami Allaithi were all kept at the detention facility for various periods of time between 2001 and 2006. Celikgogus, Sen, and Mert were returned to their home country of Turkey without any determination by the Combatant Status Review Tribunals (CSRTs). Hasam, Muhammad, and Allaithi appeared before a CSRT and were subsequently cleared--i.e., no longer classified as suspected enemy combatants.
The CSRT determinations, however, did not mark the end of their respective stays at Guantanamo. Hasam, for instance, was informed he was cleared on May 8, 2005 but was not transferred to the custody of Albanian officials until November 16, 2006. Muhammad similarly received word in May 2005, but did not depart for Albania until nearly two years later. Allaithi was informed of his CSRT clearance sometime after November 2004, and he was transferred to the custody of Egyptian officials
about ten months after his appearance before a CSRT.
Their extended stays could hardly be called uneventful. According to Hasam, he was subjected to forced grooming, solitary confinement, sleep deprivation, forced medication, transport in " shackles and chains, blackened goggles, and ear coverings," and the disruption of his religious practices after CSRT clearance. See J.A. at 68-69. After receiving his CSRT determination, Muhammad was " shackled, physically searched and insulted." See J.A. at 74.
On November 21, 2006, Celikgogus, Sen, Mert, Hasam, and Muhammad filed suit in district court, claiming these events--in addition to ones that took place prior to CSRT clearance but not before us today--gave rise to various causes of action, including violations of the Alien Tort Statute (ATS), the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, the Religious Freedom Restoration Act (RFRA), and the Federal Civil Rights Act. Nearly two years later, Allaithi followed suit, making similar claims. The crux of the plaintiffs' allegations was that the named defendants " authorized" and " turned a blind eye to" the alleged abuses. See J.A. at 80, 116-17.
The Attorney General certified the Appellees were acting within the scope of their employment at the time of the alleged events. The Government then filed a motion to dismiss in both cases, arguing both iterations of Rasul v. Myers foreclosed the Appellants' claims. See generally Rasul v. Myers, 563 F.3d 527, 385 U.S.App. D.C. 318 (D.C. Cir. 2009) ( Rasul II ); Rasul v. Myers, 512 F.3d 644, 379 U.S.App. D.C. 210 (D.C. Cir.) ( Rasul I ), vacated and remanded by 555 U.S. 1083, 129 S.Ct. 763, 172 L.Ed.2d 753 (2008). After consolidating the two suits, the district court agreed with the Government's position and dismissed the cases. With respect to the Appellants' treatment after CSRT clearance, the district court explained the determination was a " distinction without a difference," as the tribunals " did not change the fact that the plaintiffs were detainees of the U.S. military as part of its operations in conducting the war on terror." Celikgogus v. Rumsfeld, 920 F.Supp.2d 53, 58-59 (D.D.C. 2013). Because the ATS claims against the individual ...