Rasul v. Myers

adequately they were on them and interlocutory appeal.

briefed the dismissals we affirm

Accordingly, failure-to-investigate APA

appellants’ remand the cases

claims otherwise

the district court. F.3d 527 RASUL, al.,

Shafiq et

Appellants/Cross-

Appellees General, MYERS, Air Force et

Richard

al., Appellees/Cross-Appellants. 06-5209, 06-5222.

Nos. of Appeals,

United States Court Circuit.

District of Columbia Sept.

Argued 24, 2009. April

Decided Lewis, Toomey, jurisdic- Eric L. A. Katherine Counts and 3 invoked Ratner, Statute, Shayana Michael and Kadidal tion Alien Tort under supplemental appel- were on the briefs for § alleged U.S.C. and violations lants/cross-appellees. 4 alleged international law. Count viola- tions of of the Gene- unspecified provisions Hertz, Acting Michael F. Assistant At- va Convention. Counts 5 and asserted General, torney and M. Robert Loeb and Bivens claims for violations of the Fifth Collette, Attorneys, Matthew M. were on Eighth Amendmеnts to the Constitu- supplemental briefs for appel- Agents tion. See v. Six Bivens Unknown lees/cross-appellants. Narcotics, Fed. Bureau BROWN, Before: HENDERSON and (1971). 29 L.Ed.2d 619 RANDOLPH, Judges, Circuit Senior alleged Religious Count 7 a violation of the Judge. Circuit (RFRA), Freedom Restoration Act §§ seq. U.S.C. 2000bb et Opinion for the filed PER We affirmed the district court’s dismiss- CURIAM. al of 1 to 4 and Counts Counts and 6 and Concurring opinion by filed Circuit reversed its denial of the motion to dismiss Judge BROWN. I, Count 7. Rasul 512 F.3d at 672. We PER CURIAM: agreed juris- that the district court had no diction over Counts 1 to 4.1As to Counts vacated our decision and we ruled on plaintiffs (D.C.Cir. Myers, Rasul v. 512 F.3d 644 held, alternative, merits and in the 2008) (Rasul I), and remanded case for even if plaintiffs had under the Due further light consideration in of Boume — Process Clause and the Cruel and Unusual Bush, -, diene v. Punishment if Clause and even those 171 L.Ed.2d 41 Rasul v. — violated, rights had qualified been immuni- U.S. -, Myers, ty shields the defendants because the as- L.Ed.2d 753 do not We believe clearly serted were not established changes Boumediene the outcome in Ra- at the time detention. M at sul I. We therefore reinstаte our judg ment, 665-67. As to plain- Count we held that but on a more limited basis. tiffs among protected “per- We have before us four British nationals RFRA, for whom son[s]” brought who alleging an action 2000bb-l(a)-(b), § creates a private right were illegally detained and mistreated at remedy unjustifiable govern- action to the United States Naval Base at Guanta- ment religion. burdens on the exercise of Cuba, namo Bay, from 2002 until their Id. They release named as defen- dants former Secretary attempt of Defense Plaintiffs do not to show how Donald military Rumsfeld and ten senior U.S. offi- Boumediene bears on 1 to Counts complaint cials. The in seven nothing was counts. we can see in the Court’s explained premised 1. We alleged that the Westfall Act makes tortious conduct within (FTCA), the Federal Tort scope employment. Claims Act 28 U.S.C. of defendants’ seq., remedy §§ any 2679 et the exclusive 512 F.3d at 663. Since failed damages action for torts committed a fed- to exhaust their administrative remedies FTCA, acting scope required eral official "while within the see McNeil v. United employment.” his office or 28 U.S.C. 2679(b)(1). The Alien Tort Statute and Ge- L.Ed.2d 21 the district court lacked jurisdiction neva Convention claims in Counts 1 to were over Counts 1 to 4. military affect our dis- on a base outside possibly decision that could territory process rights); shall there- have no due position of those Counts. We United, judgment on 1 to Verdugo-Urquidez, fore reinstate our Counts States v. remaining three 222 respect 110 108 L.Ed.2d With U.S. S.Ct. Counts, (1990) plaintiffs argue that Boumediene (holding that the Fourth Amend analysis. gist of their vitiates protect ment nonresident aliens does argument prescribes is that Boumediene against unreasonable searches or seizures multi-factor, “functional” test to determine territo conducted outside U.S. predicament whether aliens in their can ry); Pauling McElroy, v. rights, and that the

invoke constitutional (D.C.Cir.1960); People’s Mojahe 254 n. 3 By pass assert test. exten- State, Org. Dep’t din Iran v. 182 sion, ‍​‌​‌​​​​‌​​​​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌​​‌‌​​‌​‍they argue that if RFRA mirrors a (D.C.Cir.1999); see also Ki previous right version of the constitutional Obama, yemba v. exercise,

of free then the same functional (D.C.Cir.2009) that alien (holding detainees approach governs RFRA’s extraterritorial at Guantanamo cannot invoke the Due reach. Clause). Process main question Boumediene was Plaintiffs nevertheless maintain Military in the provision whether Com prece that Boumediene has eroded the Act, missions Pub.L. No. Eisentrager dential force of proge and its (2006) (codified in part Stat. 2600 at 28 ny. Whether is so is not for us to note), § 2241 depriving & determine; the Court has reminded the сorpus jurisdiction courts of habeas over lower federal that it alone courts retains detainees, petitions filed Guantanamo precedents. to overrule its gov violated the clause of the Constitution Rodriguez Quijas de Shearson/Am. writ, 1, 9,§ of the ART. erning suspension Inc., Express, S.Ct. Holding cl. 2. 128 S.Ct. at 2237. that the panel 104 L.Ed.2d 526 A Suspension extended to Guantana Clause this court is under another constraint: we mo, jurisdic Court struck down must adhere to the law of our circuit un tion-stripping provision Military less that law conflicts with a decision of the Commissions Act as an unconstitutional Supreme Court. See LaShawn A. v. Bar suspension of the writ. Id. The Court (D.C.Cir.1996) (en ry, 87 F.3d acknowledged that it had never before de banc). protected termined that the Constitution There why is another reason abroad, aliens detained id. at should not decide whether Boumediene explicitly confined its constitutional hold portends application of the Due Process “only” to the extraterritorial reach of Clause and Cruel and Unusual Punish Clause, Suspension id. at 2275. The ment Clause to Guantanamo detainees— Court stressed that its decision “does not and it ground we will rest our gov address the content the law that quali decision on remand. The doctrine of petitioners’ erns detention.” Id. at 2277 added). immunity fied words, government shields officials With those liability from civil to the extent their al any in Boumediene disclaimed in leged clearly misconduct “does not violate existing governing tention to disturb law established or constitutional of any the extraterritorial reach constitu person of which a reasonable would provisions, Suspen tional other than the See, Fitzgerald, have known.” Harlow v. e.g., sion Johnson v. Eisen Clause. U.S. 763, 73 L.Ed.2d truger, 339 S.Ct. L.Ed. U.S. S.Ct. (1950) opinion Our initial (holding aliens detained followed Katz, requirement 533 127 Saucier J., 272 (Breyer, concurring) Spector 150 L.Ed.2cl (quoting Service, that courts first Motor Inc. McLaughlin, must determine alleged make a viola whether the facts out 89 L.Ed. 101 (1944))). Saucier, right; plain tion of a constitutional if the In view of adjudication step, tiff satisfies this first then the court was “unavoidable” when we decision, must determine right given whether asserted rendered our initial but “clearly was established” the time of the is no longer Pearson that true. violation. Af Id. 121 S.Ct. 2151. explained Our opinion why qual- vacated decision, Supreme ter our initial the Court immunity ified insulates the defendants n — Callahan, handed v. dow Pearson I, from plaintiffs’ Bivens claims. Rasul U.S. -, 172 565 L.Ed.2d 512 F.3d at 665-67. Boumediene does (2009). Pearson that ruled the Saucier affect what No gov- we wrote. reasonable sequence optional that is and lower federal ernment official would have been notiсe on courts have the to only discretion decide plaintiffs that any had Fifth Amendment “clearly

the more narrow established” is Eighth rights. Amendment Id. at 666. “in in light sue circumstances the detention,2 At the time their of neither the particular case at hand.” Id. at 818. Supreme Court nor this court had ever judicial Considerations restraint favor held that captured aliens soil exercising option regard beyond the Pearson and detained terri- U.S. in tory to Bivens claims 5 and any Counts had constitutional —under Amendment, immunity question 6. The is Fifth Eighth оne that we the the Amend- decide,” ment, quickly easily can “rather and or otherwise. The Court in Boume- that; Pearson, already 129 S.Ct. at recognized just 820—and diene “It is that true have. See Rasul 512 F.3d at the today 665-67. before Court has never that held “older, thus the judicial by We follow wiser noncitizens in detained our Government pass counsel ‘not on questions territory country to of consti over which another main- tutionality ... adjudication jure unless such is tains de sovereignty any rights Pearson, unavoidable.’” 129 at 821 under our S.Ct. Constitution.” 128 S.Ct. at Harris, 372, 388, v. (quoting Scott 550 U.S. 2262.3 All sovereignty. Agreement

2. four were released than retained more ultimate See years four the decided before Court Between the United States and for the Cuba Boumediene, Coaling and months before Court Lease the of Lands for and Naval Sta- tions, 23, 1903, U.S.-Cuba, statutory' juris held corpus even that habeas Feb. T.S. No. diction to recognized extended Guantanamo. See Rasul art. III. The Bush, 466, 483-84, Connell, Vermilya-Brown v. 542 in v.Co. 335 U.S. L.Ed.2d 159 548 We do not L.Ed. 93 76 Act, require government employees anticipate Immigration Nationality to See also and 8 fact, developments I101(a)(38). future law. before Boume- diene, Creighton, Anderson 483 U.S. clearly it was established that is "[w]ho (1987); 107 jure facto, S.Ct. 97 523 But sovereign, territory L.Ed.2d the de de Columbia, era v. District judicial, political question, is not a but is a the legislative of which determination departments any government executive gov- conclusively judges We ... wrote in Rasul that no one had reason binds the of that Co., Oeljen suppose to ernment." that Guantanamo was within Cent. Leather sovereignty territorial United States. S.Ct. L.Ed. agreement ‍​‌​‌​​​​‌​​​​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌​​‌‌​​‌​‍giving (quoting 666-67. F.3d at Jones v. United recog- the United States an indefinite lease L.Ed. lessor, Cuba, (1890)); Republic Vermilya-Brown, nized that the Amendment the Fourteenth provisions of Verdugo-Urquidez Eisentrager controlling Su- to application, to be in their all thought were “are universal preme Court cases Constitution’s jurisdiction within the territorial persons Eisentrager to aliens abroad. application Verdugo-Ur added by Ger- rejected petition brought a hаbeas Colding, Hai quidez); Kwong Chew imprisoned at United man nationals 596 n. L.Ed. Germany. military base States (1953) (“The Bill of is a futile Rights held seeking the alien admission no relevant prisoners, these alien who “at to for the first time these shores. But any territory over which time were within lawfully an enters resides once alien sovereign,” the United States he invested with country in this becomes protection of writ entitled invoke rights guaranteed the Constitution Amendment. Id. The Court or the Fifth borders.”) (empha people to all within decisive fаct referred nine times Verdugo-Urquidez)). sis added in Those were, all prisoners rele- alien who, help cases could not an alien like times, sovereign U.S. territo- vant outside in Verdugo-Urquidez plaintiffs this 777-78, 70 936. ry. See id. at S.Ct. case, in had at no relevant time been later “[Ejmphatic” is how the Court de country previous significant “no and had that rejection scribed its claim aliens voluntary the United connection with sovereign territory of the Unit outside States,” id. process entitled to due ed States are 494 U.S. rights. Verdugo-Urquidеz, at 666, out, F.3d points As Rasul 512 at 269,110 (citing Eisentrager, 1056 339 S.Ct. the law of circuit also holds that the 936). 770, Following at Ei U.S. does not extend Fifth Amendment to sentrager, Verdugo-Urquidez the Court presence aliens or entities without concluded that the Fourth Amendment did in the States. See property United protect nonresident aliens un 22; 182 at People’s Mojahedin, F.3d 32 or seizures conducted reasonable searches County Sovereignty Dep’t Comm. v. U.S. sovereign territory of the Unit outside the State, (D.C.Cir.2002); 292 F.3d 799 274-75, States. Id. at 110 S.Ct. 1056. ed FAA, also 370 F.3d 1182 Jifry see althоugh that Ameri majority The noted (D.C.Cir.2004), denied, 543 U.S. cert. can some con can citizens abroad invoke (2005); 125 161 107 S.Ct. L.Ed.2d id. at 110 protections, stitutional S.Ct. Pauling, applied at 254 n. 3. We Covert, 77 (citing 1056 Reid to authority this line of Guantanamo dur 1222, 1 (plurality L.Ed.2d 1148 S.Ct. ing plaintiffs’ In Al Odah v. detention. altogeth in an opinion)), aliens abroad are (D.C.Cir. States, United Id. er different situation. at S.Ct. 2003), jurisdic that habeas held dealing long line cases to tion does not extend Guantanamo and rights of both lawful resident how, why, cannot noted that see “[w]e “only aliens illegal аliens establishes to the writ be made available aliens may protec that receive constitutional aliens protec abroad when basic constitutional have the ter tions when come within are Id. at 1141. The tions not.” developed ritory of the States and United (on statutory reversed that decision country.” with this substantial connections plaintiffs’ release. Ra Doe, 212, grounds) only after (citing Plyler v. Id. U.S. (1982) (The sul, 124 S.Ct. 2686. U.S. States, 140; S.Ct. also Lin United see to aliens held at

Discounting precedents just we have tutionаl extend described, say position their fol Guantanamo. plaintiffs century-old Insular

lows from the Cases. short, In there was no A series of decisions from ample authority against plain for—and — Bidwell, De Lima v. tiffs’ asserted at the time of (1901), 45 L.Ed. 1041 to Balzac v. alleged misconduct. The defendants are Rico, 298, 42 Porto S.Ct. immunity qualified therefore entitled to L.Ed. 627 extended “fundamental against plaintiffs’ Bivens claims.5 to “un personal rights” inhabitants This leaves the RFRA claim Count territories, incorporated” U.S. such as opinion Our vaсated held as matter Rico, Philippines. Puerto Guam and the interpretation generally Dorr v. United protected “personal” within 49 L.Ed. 128 RFRA, 2000bb- meaning complete States maintained United 1(a). possibly Boumediene could not territories,4 sovereignty over these retroactively—the meaning altered — Congress governed pursu the territories analysis RFRA. We will summarize our IV, 3,§ ant to Art. power regulate its Rasul I. “Territory Property belonging or other RFRA, enacting the United States.” See in Verdugo-Urqui dez, 1056; Reid, incorpоrate govern tended to the standard prevailed be (plurality free exercise claims 780, opinion); Eisentrager, Supreme 339 U.S. at 70 fore the Court’s 1990 decision Yamashita, Smith, In re ‍​‌​‌​​​​‌​​​​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌​​‌‌​​‌​‍(distinguishing Employment Division v. 494 U.S. 327 U.S. 90 L.Ed. 499 110 S.Ct. 108 L.Ed.2d 876 (1990). Flores, ground sovereignty of “our City Boerne v. 507, 515, posses at time over these insular sions”). (1997). what, applies Neither factor The aim was to restore Guanta view, namo. The Congress’s Insular Cases therefore could in is the free exercise “clearly right guaranteed established” that consti- the Constitution both—in acquired 4. When the United States new terri- сourts cannot fashion a Bivens action when Cases, "special against doing tories like those involved in the Insular factors” counsel so. I, (Brown, J., through treaty power either or the war 512 F.3d con- Rasul at 672-73 Wallace, power, curring) Chappell (quoting the ties to the "former Dorr, 296, 298, dissolved.” 195 U.S. at [were] 76 L.Ed.2d 586 (1983)). (quoting danger obstructing S.Ct. 808 Am. Ins. Co. v. 356 Bales The U.S. na- Cotton, 1 Pet. 7 L.Ed. security policy tional is one such factor. See (1828) (Marshall, C.J.)). agreement Sanchez-Espinoza Reagan, 770 F.2d expressly between the United States and Cuba Sanchez-Espinoza held disavows such a dissolution of ties to Cuba: special that "the needs of affairs must recognizes "[T]he United States the continu- stay damage our hand in the creation of rem- sovereignty Repub- ance of the ultimate against military foreign policy edies offi- lic of Cuba over the above described areas of allegedly cials for unconstitutional treatment Agreement land and water....” Between the foreign subjects causing injury abroad.” United States and Cuba for the Lease of distinguishing Id. We see no basis for Stations, Coaling I, Lands for and Naval Feb. Sanchez-Espinoza. case from See Rasul 23, 1903, U.S.-Cuba, T.S. No. art. III. J., (Brown, concurring). 512 F.3d at 673 Plaintiffs’ claims are therefore fore- Bivens basis, ground 5. There is an alternative for dismiss- closed on this alternative which is also ing plaintiffs’ Judge Bivens claims. As Brown unaffected Court’s Boume- concurrence, noted in her initial diene decision. scope. “person[s]” therefore held claim are not substance We because “pеrson” that the term as used RFRA meaning within the of that statute. See consistently should be read with similar Maj. Op. (summarizing analysis its language provisions, as Myers, from Rasul v. at the interpreted (D.C.Cir.2008) I)). Yet, {Rasul funda “[a] I, Congress RFRA. time enacted Rasul mental canon of construction is Congress legislated 512 F.3d at 670-72. that, defined, unless otherwise words will precedent background es interpreted be their taking ordinary, tablishing that nonresident aliens were not contemporary, common meaning.” Perrin among “person[s]” protected by United Amеndment, Eisenlrager, Fifth 311, 62 L.Ed.2d 199 RFRA does among and were not not define so “person,” we must look to the people” protected by “the the Fourth ordinary meaning. word’s There little Amendment, Verdugo-Urquidez, 494 U.S. mystery “person” that a is “an individual 110 S.Ct. 1056. See also Cuban being distinguished human ... as from an Am. Bar Christopher, Ass’n v. thing.” animal or a Webster’s New Inter (11th Cir.1995) (Cuban Hai Dictionary Unlike national refugees Bay tian at Guantanamo lack majority, believe “[did not] First rights). Reading Amendment specifically ‘per vest the term ] RFRA in precedents, line with these we intend! ... sons’ with a definition odds its protected “per held are not under plain meaning.” son[s]” this statute. Rasul v. Rumsfeld, F.3d at 672. judgment (D.D.C.2006). We reinstate that F.Supp.2d today.6 majority point single does not to a reasons, foregoing For the affirm defining “person” statute narrowly so as to 1, 2, 3, district court’s dismissal of Counts ambit, exclude nonresident aliens from its 5 and 6 of complaint and re- nothing history suggests RFRA’s verse the district court’s denial of defen- Congress focused on the scope term’s dants’ motion to dismiss Count 7. here. RFRA originally provided thаt So ordered. “[government substantially shall not bur- person’s den a religion” exercise unless BROWN, of Judge, concurring: Circuit such a burden is “the least restrictive I join majority opinion in full as to means of furthering govern- compelling [a] Bivens claims and to the § mental interest.” 42 U.S.C. 2000bb-l extent it disposes plaintiffs’ Religious of (1994) added). It defined “exer- (“RFRA”) Freedom Restoration Act religion” cise of religion as “the exercise of qualified claims under the doctrine of im- under the First Amendment to the Consti- munity. separately I write I because dis- 2000bb-2(4) tution.” Id. (emphasis add- agree “person” the term limits the ed). The reference to the “First Amend- scope of the RFRA. ment” it persons made clear that who did not have First Amendment majority protected by RFRA. Given reinstates its initial hold- this clear tex- basis, bring cannot a RFRA tual “person” the term did no work alternative, In the plaintiffs' for reasons stated in RFRA claim. See Rasul (Brown, J., Judge concurring opinion, Brown's initial de- 512 F.3d at 676 & n. 5. concur qualified immunity ring). fendants are entitled to that, by removing term “First Amend- claim limiting principle as a —“First of job. ment” Amendment” from RFRA’s definition did sub religion,” Congress “exercise of silen- Religious Land and Institu Use “person.” of changed tio RFRA’s definition (“RLUIPA”) Act of tionalized Persons interpreta- But this transforms 106-274, 114 No. Stat. Pub.L. game tion into a of a delet- whaek-a-mole: RFRA’s amended definition simply re-appear ed textual hook does not “any to cover exer religion” “exercise in another statutory term. religion, compelled cise of whether or not ‍​‌​‌​​​​‌​​​​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌​​‌‌​​‌​‍to, by, system religious or central no Finding support other its con- belief,” and removed the term “First “person,” majori- stricted definition of 7(a), 8(7)(A), §§ Amendment.” See id. 114 ty interpreting turns to decisions constitu- Stat. 807. This was change meant provisions: tional Eisentrager, Johnson v. “clarify[ generated litiga issues that had ] L.Ed. 1255 tion providing under RFRA” that “[r]e- (Fifth (1950) Amendment), and United ligious compulsory exercise need not be Verdugo-Urquidez, States religious central to the claimant’s belief Rep. system.” 106-219, H.R. NO. at 30 (Fourth Amendment). Eisentrager reject-

(1999); Kaspar, see also Adkins v. 393 ed this circuit’s conclusion that the breadth (5th Cir.2004) & n. 34 “рerson” of the term in the Fifth Amend- (citing pre-RLUIPA cases “the requiring expanded coverage ment of the Due religious exercise to be burdened ‘central’ Process beyond Clause its traditional lim- religion”). Congress to the ex wanted to Nevertheless, its. nowhere in its exten- pand protections RFRA’s to a broader rely sive discussion did the Court range practices, religious Navajo see “person.”1 holding definition of Its turned Serv., Nation v. U.S. Forest understanding on the conventional (9th Cir.2007); there is no indication Amеndment, Fifth the “full text” of that it per wanted to broaden the universe Amendment, foreign policy and the com- However, protected by sons RFRA. plexities allowing aliens to assert consti- removing the term “First Amendment” rights. tutional Id. at RFRA, Congress inadvertently from delet Moreover, Eisentrager interpreted 936.2 ed precluding persons the textual hook Clause; the Due Process imple- RFRA who did have First Amendment ments the Free Exercise Clause. from asserting RFRA claims. “person” term not in appear does the Free Const, Clause, panel majority Exercise see U.S. attempts cure the amend. problem (“Congress respecting shall make no Congress’s created careless law by constricting meaning religion, amendment the of prohibiting an establishment of ”), “person.” the term This down to a free exercise boils the thereof .... and thus fact, Similarly, Eisentrager 1. of In repeatedly none the other Fifth Amend the opin majority's ment cases cited in the ion, initial "person” used the in term its common mean- 668, rely F.3d at ing. (citing Sеe id. at 768 n. FAA, Jifry "person.” definition of brought "persons,” cases on behalf of refer- (D.C.Cir.2004) (not men F.3d 1182-83 aliens”); ring enemy to "German id. at tioning holding "person” the term in nonresi ("The Appeals of has cited dent aliens with insufficient contacts do not holding no for whatever that rights); Moja People's have Fifth Amendment rights upon per- Fifth Amendment confers all State, Org. Dep’t liedin Iran U.S. of of ...”). sons. (D.C.Cir. 1999) (same foreign F.3d for entities). party a “rare cases” where text in those “person” cannot be the definition of not free “the of a application abroad can that literal aliens held show reason do rights. result demonstra- produce exercise will a statute intentions of its bly odds with the at ma- helpful is less to the Verdugo even Radio, FCC, Pub. Inc. drafters.” Nat’l Eisentrager, Verdugo did Unlike jority. F.3d analysis, explaining a definitional rely on did apply Amendment not that the Fourth of RFRA drafting history unusual of our bor- aliens outside to nonresident of those rare make this one RLUIPA ders, “the re- part, people” because originally only provided for cases. RFRA a to in Amendment identifies ferred Amendment violation of First suits for of persons part who are a nation- “class of not rights, did include intrusions which community de- or who have otherwise al plaintiffs’ posi free exercise those sufficient connection with veloped Ass’n, Am. Bar Inc. v. tion. See Cuban part to be of that com- country considered (11th Cir. Christopher, 265, 110 munity.” 494 at 1995). that There is no doubt RLUIPA’s added). “the are people” While drafters, changing definition “ex the relevant merely persons,” “сlass of to broaden the religion,” ercise of wanted are purposes for RFRA “who inquiry protected kinds scope practices “per- answer is ‘persons’?” The obvious— RFRA, not to the universe of increase beings, human are individual sons” protected by RFRA. See H.R. individuals people just are one the American whom Rep. Adkins, 30; NO. class. Nation, 34; Navajo & n. of RFRA application 1033. Literal II Congress’s would force us hold careless majority’s approach is unten- While drafting inadvertently expаnded scope able, prevail. still do a result is plaintiffs. of RFRA Such “de “[government proscription RFRA’s monstrably at odds the intentions of substantially person’s burden a shall not drafters.” See Nat'l Pub. Ra [RLUIPA’s] religion” and RLUIPA’s new exercise dio, 254 F.3d at religion” “any of “exercise of definition whether or not com- religion, exercise of Ill to, by, system of reli- pelled central plaintiffs’ argument Accepting belief,” leave no textual basis gious Free imports RFRA entire Exercise brought by non-resident prohibiting suits military into the detention Clause edifice Guantanamo, or na- foreign held at aliens context would revolutionize treatment for American officials tionals who work way in a captured Congress combatants or, bases, ji- military arguably, on NATO RFRA, drafting contemplate. did not encounter on hadists soldiers on how was not focused to ac- “statutory language battlefields.3 While important values of reli- commodate represents clearest indication Con- intent,” military detention may go beyond gious toleration gressional Moreover, “government” provides ably of the United States. term no limit- officials 3. The out, majority points defines term as basis since RFRA since defendants (or person acting including States, other an “official it is irrele- are of the United officials law) color of of the United or under Bay Naval whether Guantanamo Base is vant 2000bb-2(l). § entity.” 42 U.S.C. a covered entity.” a at 667 "covered Defendants, Secretary of Defense and n. 19. officers, military unquestion- are high-ranking specifi- If focused sеtting. Congress had 563 F.3d 536 it undoubt- cally challenge, on this would NATIONAL TELEPHONE edly have struck a different balance: ASSOCIATION, COOPERATIVE making government somewhere between Petitioner every officials’wallets to detainee available panoply not afforded the full of free exer- FEDERAL COMMUNICATIONS COM- declaring cise those in our cus- United States of MISSION and tody “persons.” are not It would not have America, Respondents damage remedy, created a RFRA-like but subject it likely prohibited, would have to Qwest Corporation, Communications appropriate exceptions, unnecessarily de- al., et Intervenors. grading religious acts of humiliation. It No. 08-1071. sought would have to deter such acts not victims, by compensating by pun- but of Appeals, United States Court ishing perpetrators through or other District of Columbia Circuit. See, e.g., administrative measures. Ronald 26, 2009. Argued Jan. Reagan W. National Defense Authoriza- April Decided tion Act for Fiscal Year Pub.L. No.

108-375, §§ to 118 Stat. (2004) (to codified at 10 U.S.C. be note)

§ (creating an administrative re-

gime prevent unlawful treatment of de-

tainees); Detainee Treatment Act of 1003(a), §

Pub.L. 119 Stat. 2739

(to 2000dd) be codified at

(“No custody individual or under physical ‍​‌​‌​​​​‌​​​​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌​​‌‌​​‌​‍control of the United States

Government, regardless nationality location, cruel,

physical subject shall be

inhuman, degrading pun- treatment or

ishment.”). interpretation Judicial without worst, stop-gap;

text is at best

usurpation. Congress when RFRA, jihad promi-

amended was not a part vocabulary prolonged

nent of our

military alleged enemy detentions of com-

batants were part conscious- They

ness. are now. should

revisit RFRA with these circumstances in

mind.

Case Details

Case Name: Rasul v. Myers

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 24, 2009

Citation: 512 F.3d 644

Docket Number: 06-5209, 06-5222

Court Abbreviation: D.C. Cir.