Actualidad
USA v. Rasul
17 de Enero de 2008Para el Barbaro Trucutu los extranjeros no son personas y pueden ser torturados.
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUITArgued September 14, 2007 Decided January 11, 2008No. 06-5209SHAFIQ RASUL ET AL.,APPELLANTS/CROSS-APPELLEES v. RICHARD MYERS, AIR FORCE GENERAL ET AL., APPELLEES/CROSS-APPELLANTS Consolidated with 06-5222 Appeals from the United States District Court for the District of Columbia (No. 04cv01864) Eric L. Lewis argued the cause for the appellants/crossappellees. A. Katherine Toomey, Sarah L. Knapp, Elizabeth A. Wilson, Michael Ratner, Jennifer M. Green and Shayana Kadidal were on brief. Sidney S. Rosdeitcher was on brief for amici curiae National Institute of Military Justice et al. in support of the appellants. William J. Aceves and Paul Hoffman were on brief for amicicuriae International Law Scholars and Human Rights 1The other appellees include Air Force General Richard Myers,Army Major General Geoffrey Miller, Army General James T. Hill,Army Major General Michael E. Dunlavey, Army Brigadier GeneralMichael Lehnet, Army Colonel Nelson J. Cannon, Army ColonelTerry Carrico, Army Lieutenant Colonel William Cline and ArmyLieutenant Colonel Diane Beaver.Organization in support of the appellants.Stephen M. Truitt and Michael Rapkin were on brief foramici curiae Counsel for Guantanamo Detainees et al. in supportof the appellants.Jerome A. Hoffman and Christopher C. Lund were on thebrief for amici curiae National Association of Evangelicals et al.in support of the cross-appellees.Jonathan F. Cohn, Deputy Assistant Attorney General,United States Department of Justice, argued the cause for theappellees/cross-appellants. Peter D. Keisler, Assistant AttorneyGeneral, Gregory D. Katsas and Jeffrey S. Bucholtz, PrincipalDeputy Associate Attorneys General, and Robert M. Loeb andMatthew M. Collette, Attorneys, United States Department ofJustice, were on brief. R. Craig Lawrence, Assistant UnitedStates Attorney, entered an appearance. Before: HENDERSON, RANDOLPH and BROWN, Circuit Judges. Opinion for the court filed by Circuit Judge HENDERSON.Separate concurring opinion filed by Circuit Judge BROWN.KAREN LECRAFT HENDERSON, Circuit Judge: Appellants Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith (plaintiffs or detainees) sued former Secretary of Defense Donald Rumsfeld (Rumsfeld) and defendant military officers 1(defendants) under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, the Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3 3516, the Fifth and Eighth Amendments to the United StatesConstitution and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq., seeking damages for their alleged illegal detention and torture at the United States Naval Base at Guantanamo Bay, Cuba (Guantanamo). The defendants argued in district court that the ATS and Geneva Conventions claims were barred by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. 100-694, 102 Stat. 4563 (1988) (amending 28 U.S.C. §§ 2671, 2674, 2679) and that they were entitled to qualified immunityon the constitutional and RFRA claims. The district court agreed that the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2679 et seq., provided the exclusive remedy for the defendants’ allegedly tortious conduct and thus granted the defendants’ motion to dismiss the ATS and Geneva Conventions claims. Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 30-36 (D.D.C. 2006). The district court also dismissed the constitutional claims, holding that the defendants were entitled to qualified immunity from suit. Id. at 41-44. It denied, however, the defendants’ motion to dismiss the RFRA claim. Rasul v. Rumsfeld, 433 F. Supp. 2d 58 (D.D.C. 2006). The plaintiffs nowappeal the dismissal of the ATS, Geneva Conventions and constitutional claims and the defendants appeal the denial of their motion to dismiss the RFRA claim. For the reasons setforth below, we affirm the district court’s dismissal of the ATS, Geneva Conventions and constitutional claims and reverse its denial of the motion to dismiss the RFRA claim.I.The complaint alleges the following facts. Shafiq Rasul (Rasul), Asif Iqbal (Iqbal), Rhuhel Ahmed (Ahmed) and Jamal Al-Harith (Al-Harith) are citizens and residents of the UnitedKingdom. Compl. ¶ 1. Rasul, Iqbal and Ahmed allege that in October 2001 they traveled to Afghanistan from Pakistan to provide humanitarian relief. Id. ¶ 35. They claim that GeneralRashid Dostum, an Uzbek warlord allied with the United States as part of the Northern Alliance, captured them in northern Afghanistan on November 28, 2001 and transferred them to United States custody in Afghanistan one month later. Id. ¶¶ 2, 42-44. In early 2002, they were transported to Guantanamo, where they remained as detainees until their repatriation to theUnited Kingdom in 2004. Id. ¶¶ 5, 58-65. Al-Harith asserts that he traveled to Pakistan on October 2, 2001 to attend a religious retreat. Id. ¶ 3. Upon being advised to leave the country because of reported animosity towards British citizens, Al-Harith alleges that he tried to return toEurope overland via Iran and Turkey. Id. According to Al- Harith, while still in Pakistan, the truck in which Al-Harith was traveling was hijacked at gunpoint by Afghans. Id. He claimshe was then forced into another vehicle which crossed the border into Afghanistan where he was subsequently turned over to the Taliban. Id. Al-Harith asserts that the Taliban accused him ofbeing a British spy and imprisoned him. Id. He claims he was released in 2001 when the Taliban fell and he contacted British embassy officials to secure his evacuation. Id. United States forces, in coordination with British officials, detained Al-Harith and transported him to Guantanamo in February 2002. Id. ¶¶ 3- 4, 63. On December 2, 2002, defendant Rumsfeld approved for use at Guantanamo interrogation techniques such as the use of stress positions, intimidation by the use of dogs, twenty-hourinterrogation sessions, shaving of detainees’ facial hair, isolation in darkness and silence and the use of “mild non-injurious physical contact.” Id. ¶ 9. Rumsfeld subsequently withdrew approval of these tactics in April 2003. Id. ¶ 11. The detainees, however, allege that they were systematically and repeayedly tortured throughout their two-year detention at Guantanamo. Id.¶ 4. For example, they claim they were beaten, shackled in painful stress positions, threatened by dogs, subjected to extreme temperatures and deprived of adequate sleep, food, sanitation, medical care and communication. Id. ¶ 6. They also allege that they were harassed while practicing their religion, id., including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet bucket. Id. ¶¶ 58, 78, 92, 97, 206.In addition to Rumsfeld’s approval of these interrogation techniques, the detainees assert that the other defendants implemented, supervised and condoned their torture and detention. See id. ¶ 154 (“[A]ll [d]efendants were aware that plaintiffs were tortured . . . .”); id. ¶ 155 (“[A]ll [d]efendants took no steps to prevent the infliction of torture . . . .”); id ¶ 156(“All [d]efendants authorized and encouraged the infliction of torture . . . .”). For example, plaintiffs allege that defendant Myers, a United States Air Force General and Chairman of theJoint Chiefs of Staff, was informed of the torture and mistreatment of Guantanamo detainees and, as the senior military officer charged with maintaining the custody of the detainees, condoned their torture. Id. ¶ 20. They assert that defendant Miller, a Major General in the United States Army, implemented and condoned the torture and mistreatment of Guantanamo detainees as the Commander of Joint Task Force GTMO. Id. ¶ 21. They claim that defendant Hill, a General in the United States Army and Commander of the United States Southern Command, sought approval for several abusive interrogation techniques used on them. Id. ¶ 22. They allegethat defendant Dunlavey, a Major General in the United States Army, implemented and condoned torture and cruel, inhuman and degrading acts as the Commander of Joint Task Force160/170, which succeeded Joint Task Force-GTMO at Guantanamo. Id. ¶ 23. They assert that defendant Hood, a Brigadier General in the United States Army, operated the detention facilities at Guantanamo and had supervisory responsibility for the detainees as the Commander of Joint Task Force-GTMO. Id. ¶ 24. They claim that defendant Lehnert, a Brigadier General in the United States Marine Corps, was responsible for the construction and operation of Camp X-Rayand Camp Delta at Guantanamo and had supervisory responsibility for detainees. Id. ¶ 25. They allege that defendant Cannon, a Colonel in the United States Army, had supervisory responsibility for the detainees as Commander of Camp Delta at Guantanamo. Id. ¶ 26. They assert that defendant Carrico, also a Colonel in the United States Army, had supervisoryresponsibility for the detainees as Commander of Camp Delta and Camp X-Ray at Guantanamo. Id. ¶ 27. Finally, they claim that defendant Beaver, a Lieutenant Colonel in the United StatesArmy and Chief Legal Adviser to defendant Dunlavey, provided an opinion purporting to justify the torture and mistreatment of detainees. Id. ¶ 28.The plaintiffs were released in March 2004 and returned to the United Kingdom. Id. ¶ 5. On October 27, 2004, they filed a complaint alleging seven causes of action against defendantRumsfeld and the defendant military officers: (1) prolonged arbitrary detention under the ATS, (2) torture under the ATS, (3) cruel, inhuman or degrading treatment under the ATS, (4)violations of the Geneva Conventions, (5) violations of the Eighth Amendment, (6) violations of the Fifth Amendment and (7) violations of RFRA. Compl. ¶¶ 159-210. They claim theysuffered physical and psychological trauma as a result of their detention at Guantanamo. Id. ¶¶ 138-140. On March 16, 2005, all of the defendants moved to dismiss for lack of subject matterjurisdiction and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Rasul, 414 F. Supp. 2d at 29.The district court dismissed the ATS, Geneva Conventions and constitutional claims, concluding, as discussed infra pp. 11- 27 that pursuant to the Westfall Act, the FTCA provides the exclusive remedy for torts by a federal official or employee. The holding in Bivens permits a plaintiff to bring an action in federal court against a federal officer/employee for the violation of his constitutional rights. 403 U.S. at 389. A Bivens suit is the federal counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against a state or local officer/employee for the violation of the claimant’s constitutional rights.committed within the scope of his employment. Rasul, 414 F. Supp. 2d at 31 (citing 28 U.S.C. § 2679(b)(1)). The court held that the ATS and Geneva Conventions claims were covered by the Westfall Act because the defendants’ authorization, implementation and supervision of the alleged torture and detention of the detainees was within the scope of their employment. Id. at 32-36. Relying on the Restatement (Second) of Agency § 228(1) (1957), the court concluded thatthe defendants’ conduct was incidental to the conduct authorized, id. at 33-34, took place within the time and place limitations sanctioned by the United States, id. at 34, was done to further the interests of the United States, id. at 35-36, and was foreseeable, id. at 36. It further ruled that neither the ATS claims nor the Geneva Conventions claim fit within one of the statutory exceptions to the Westfall Act. Id. at 36-38. Accordingly, because the plaintiffs had failed to exhaust their administrative remedies as required by the FTCA, see McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA barsclaimants from bringing suit in federal court until they have exhausted their administrative remedies.”), the court dismissed the claims under Federal Rule of Civil Procedure 12(b)(1).Rasul, 414 F. Supp. 2d at 39.Regarding the two constitutional claims brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),2 the defendants argued, first,that the plaintiffs had failed to allege the violation of any right protected by the Constitution because the plaintiffs, as Guantanamo detainees, were aliens located outside sovereign.3In Saucier v. Katz, 533 U.S. 194, 201 (2001) the Supreme Court affirmed that under the doctrine of qualified immunity, a federal official alleged to have violated a plaintiff’s constitutional right isshielded from liability if the right was not clearly established at the time of the violation. See also Mitchell v. Forsyth, 472 U.S. 511, 517(1985) (“‘[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”’ (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))). Although Saucier involved a section 1983 claim, “the law of immunity in a Bivens claim against a federal official mirrors that in a section 1983 claim against a state official.” Moore v. Valder, 65 F.3d 189, 192 (D.C. Cir. 1995). United States territory at the time of the alleged violations and therefore did not possess any constitutional right. Rasul, 414 F. Supp. 2d at 39. Even assuming the plaintiffs had alleged the violation of such a right, the defendants continued, such a right was not clearly established at the time of the violations.3 Id. At 41-44.The district court reserved judgment regarding the”defendants’ first argument because, at the time, the decision in Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), holding that Guantanamo detainees were not entitled to constitutional protection, was on appeal. Rasul, 414 F. Supp. 2d at 40-41. It then concluded that the defendants were entitled to qualified immunity from suit under Bivens because any constitutional right the detainees possessed was not clearly established at the time it was allegedly violated. Id. at 41. Relying on the United States Supreme Court’s holdings in Johnson v. Eisentrager, 339 U.S. 763 (1950), and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the district court concluded that “the Constitution applies only once aliens were within the territory of the United States and developed substantial contacts in this country. 4In Johnson v. Eisentrager, the Supreme Court held that German nationals who were convicted of war crimes committed during World War II and were imprisoned at a United States army base in Germanyhad no constitutional right to test the legality of their detention by way of habeas corpus. In United States v. Verdugo-Urquidez, the Court held that the Fourth Amendment did not apply to a search by DEAagents of a Mexican citizen’s residence in Mexico. It summarized Eisentrager as “reject[ing] the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States”and described other cases involving aliens as “establish[ing] only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantialconnections with this country.” 494 U.S. at 269, 271. country.” Id. at 44.4 The court noted that “plaintiffs have provided no case law, and the court finds none, supporting a conclusion that military officials would have been aware, in light of the state of the law at the time, that detainees should be afforded the rights they now claim.” Id. The court reached the opposite conclusion regarding the plaintiffs’ RFRA claim. Rasul, 433 F. Supp. 2d at 71. As discussed infra pp. 35-43, RFRA provides that the “Government shall not substantially burden a person’s exercise of religion” unless the Government “demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). The district court first considered whether RFRA applied to Guantanamo. Rasul, 433 F. Supp. 2d at 62-67.It rejected the defendants’ argument that RFRA does not apply extraterritorially based on its interpretation of 42 U.S.C. § 2000bb-2(2), which defines “Government” to include “theDistrict of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States.” 42 U.S.C. § 2000bb-2(1), (2) (emphasis added). It reasoned that if “territory and possession” “is to have any meaning, it must include lands such as Guantanamo,” over which the United States exercises “perhaps as much control as it possibly could short of ‘ultimate sovereignty.’” Id. at 65 (quoting Rasul v. Bush, 542 U.S. 466, 475 (2004)). Next, it rejected the defendants’ assertion that RFRA does not apply to non-resident aliens. Id. at 67. It noted that “RFRA expressly protects the religious exercise of ‘persons,’ a broadly applicable term, commonly including aliens.” Id. at 66. It reasoned that “because RFRA explicitly applies to ‘persons,’ the defendants, at a bare minimum, must demonstrate that Congress specificallyintended to vest the term ‘persons’ with a definition . . . at odds with its plain meaning” and noted that “the defendants cite no authority to support their construction of RFRA.” Id. at 67.Accordingly, the district court concluded that “RFRA applies to U.S. government action at the Naval Base in Guantanamo Bay.”Id.The district court then rejected the defendants’ assertion of qualified immunity from RFRA liability. Applying the first step of Saucier v. Katz, 533 U.S. 194, 201 (2001), it held that thefacts alleged constituted a violation of RFRA. 433 F. Supp. 2d at 68-69. Specifically, it found that the defendants’ alleged harassment of the plaintiffs in the practice of their religion,including “[f]lushing the Koran down the toilet and forcing Muslims to shave their beards,” “falls comfortably within the conduct prohibited from government action by RFRA.” Id. at69. Applying step two of Saucier, the district court found that the plaintiffs’ rights under RFRA were clearly established at the time of the alleged violations, declaring that “[t]he statute’sunambiguous application to U.S. territories and possessions should have placed the defendants on notice that they were prohibited from the alleged conduct in Guantanamo.” Id. at 71(footnote omitted). While “recogniz[ing] that the defendants are not constitutional law scholars well versed on the jurisdictional reach of RFRA,” it concluded that “given the abhorrent natureof the allegations and given our Nation’s fundamental commitment to religious liberty, it seems to this court that in this case a reasonable official would understand that what he is doing violates that right.” Id. at 71 (internal quotations and citations omitted).The plaintiffs appeal the dismissal of the ATS, Geneva Conventions and Bivens claims pursuant to 28 U.S.C. § 1291. The defendants’ interlocutory appeal of the denial of qualified immunity on the RFRA claim is pursuant to the collateral order doctrine “‘to the extent that [the denial] turns on an issue oflaw.’” Int’l Action Ctr. v. United States, 365 F.3d 20, 23 (D.C. Cir. 2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).II.We review the district court’s legal conclusions de novo. Cummings v. Dep’t of the Navy, 279 F.3d 1051, 1053 (D.C. Cir. 2002) (“‘[W]e apply the de novo standard of review to the district court’s application of law to undisputed fact[s].’” (quoting Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998)) (alterations in Cummings)). We “accept as true the facts that [the plaintiffs] allege[] in [their] complaint” in reviewing the district court’s disposition of the defendants’ motion to dismiss. Id. at 1053. A. The ATS Claims The plaintiffs brought three claims for violations of the law of nations pursuant to the Alien Tort Statute (ATS) based on thedefendants’ alleged infliction of “prolonged arbitrary detention,” Compl. ¶¶ 159-66, “torture,” id. ¶¶ 167-72, and “cruel, inhuman or degrading treatment.” Id. ¶¶ 173-79. As noted earlier, theplaintiffs claim that they were beaten, shackled in painful stress positions, threatened by dogs, subjected to extreme temperatures, deprived of adequate sleep, food, sanitation, medical care and communication and harassed while practicing 5See discussion infra pp. 23-25. their religion. Id. ¶ 6. They assert that, in December 2002, defendant Rumsfeld approved the use of these interrogationtechniques and others, including shaving of detainees’ facial hair, isolation in darkness and silence and the use of “mild noninjurious physical contact.” Id. ¶ 9. According to the plaintiffs,the other defendants authorized, implemented, supervised and condoned their torture and detention, id. ¶¶ 20-28, 154-56, and thereby violated customary international law. Id. ¶¶ 163, 169, 176.The Alien Tort Statute provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The district court concluded, however, that pursuant to the Westfall Act, the plaintiffs’ claims were cognizable only under the FTCA because the defendants’ alleged conduct occurred within the scope of their office/employment. Rasul, 414 F. Supp. 2d at 36. It then held that it lacked subject matter jurisdiction because the plaintiffs failed to exhaust their administrative remedies as required by the FTCA. Id. at 39 (citing Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (“This court and the other courts of appeals have treated the FTCA’s requirement of filing an administrative complaint with theappropriate agency prior to instituting an action as jurisdictional.”)).5 In pertinent part, the Westfall Act provides: Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.28 U.S.C. § 2679(d)(1). By this provision, the Westfall Act makes the FTCA remedy “exclusive of any other civil action or proceeding for money damages” for any tort committed by a federal official or employee “while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). While the Attorney General’s certification “‘does not conclusively establish as correct the substitution of the United States as defendant in place of the employee,’” it constitutes “prima facie evidence that the employee was acting within the scope of his employment.” Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (per curiam) (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)). The plaintiffs bear the burden of challenging the certification by “‘coming forward with specific facts rebutting the certification.’” Ballenger, 444 F.3d at 662 (quoting Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003)). The court then determines whether the conduct falls within the scope ofemployment, conducting an evidentiary hearing if necessary. Kimbro v. Velten, 30 F.3d 1501, 1508 (D.C. Cir. 1994), cert. denied, 515 U.S. 1145 (citing Wang v. United States, 947 F.2d1400, 1402 (9th Cir. 1991); Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994)). If the court determines that the employee acted within the scope of his employment, “the case is, inter alia,restyled as an action against the United States that is governed by the [FTCA].” Ballenger, 444 F.3d at 662. “Scope of employment questions are governed by the law of the place where the employment relationship exists.” Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006). We look, then, “to the decisions of the Court of Appeals for the District of Columbia for our guidance on the local law.” Id. “‘As its framework for determining whether an employee acted within the scope of employment, the Court of Appeals for the District of Columbia looks to the Restatement (Second) of Agency (1957).’” Id. (quoting Haddon v. United States, 68 F.3d 1420,1423 (D.C. Cir. 1995), overruled on other grounds, Osborn v. Haley, 127 S. Ct. 881 (2007)). According to the Restatement, the “‘[c]onduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve themaster, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.’” Ballenger, 444 F.3d at 663 (quoting Restatement (Second) of Agency § 228(1) (1958)). “‘Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.’” Id. (quoting Restatement (Second) of Agency § 228(2)). On March 10, 2005, the Attorney General duly certified that “[o]n the basis of the information now available,” all of the defendants were acting within the scope of their employment “at the time of the conduct alleged in the complaint.” Certification of Scope of Employment (App. 60.) Applying the four Restatement factors, the district court concluded that “the alleged actions of the defendants were within the scope of their employment.” 414 F. Supp. 2d at 36. First, it agreed with the defendants that their alleged authorization, implementation andsupervision of torture was “‘incidental to the conduct authorized.’” Id. at 33 (quoting Restatement (Second) of Agency § 229). It noted that the United States authorizedmilitary personnel in Guantanamo “to exercise control over the detainees and question the detainees while in the custody of the United States,” id. at 34 (citing Authorization for Use ofMilitary Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)), and that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Id. It alsoemphasized that the “complaint alleges torture and abuse tied exclusively to the plaintiffs’ detention in a military prison and to the interrogations conducted therein.” Id. Examining thesecond factor, the district court observed that “the parties do not dispute that the defendants’ actions took place within the time and place limitations sanctions [sic] by the United States.” Id.Regarding the third factor, the district court ruled that the defendants “were acting, at least in part, to further the interests of their employer, the United States.” Id. at 35-36. It noted thatthe plaintiffs did “not allege that the tortious actions arose purely from personal motives, but claim[ed] that the defendants’ actions are inextricably intertwined with their respective roles inthe military.” Id. at 35. It also observed that “[t]he plaintiffs have not proffered any evidence that would lead this court to believe that the defendants had any motive divorced from the policy of the United States to quash terrorism around the world.” Id. And regarding the fourth factor, the district court concluded that while the alleged “aggressive techniques may be sanctionable within the military command, . . . the fact that abuse would occur is foreseeable.” Id. at 36. It emphasized that “the heightened climate of anxiety, due to the stresses of war and pressures after September 11 to uncover information leading to the capture of terrorists, would naturally lead to a greater desire to procure information and, therefore, more aggressive techniques for interrogations.” Id.The plaintiffs do not contest that the second, third and fourth factors listed in section 228(1) of the Restatement support the conclusion that the defendants acted within the scope of their employment in authorizing, implementing, supervising and condoning the plaintiffs’ alleged torture and detention. They do challenge the district court’s conclusion that the defendants’alleged authorization, supervision and implementation of torture was incidental to the conduct authorized, claiming that the defendants’ conduct “was never authorized,” was “seriouslycriminal,” “has long [been] condemned” by the United States 6Although the plaintiffs also assert that the defendants’ alleged conduct was not “the same general nature as was authorized,”Restatement (Second) of Agency § 229(1), we need not reach this issue because of our conclusion that the alleged conduct was “incidental to the conduct authorized.” and was a “substantial departure from the government’s ‘normal method’ of detaining and interrogating persons of interest.” Appellant’s Br. 22, 25. Alternatively, the plaintiffs assert that even if the defendants’ conduct falls within the scope of their employment, their claims come within the exception included in the Westfall Act for “a civil action against an employee of the Government . . . which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A).Finally, the plaintiffs argue that the district court erred in dismissing their claims without allowing them to conduct discovery.1. Scope of EmploymentAccording to the detainees, we cannot conclude that the formulation, approval and implementation of a policy of torture is “of the kind” of conduct the defendants were employed to perform. To be “of the kind” of conduct an individual is employed to perform, the Restatement explains that the “conduct must be of the same general nature as that authorized,or incidental to the conduct authorized.” Restatement (Second) of Agency § 229(1). The defendants respond that “[w]here high-level military officials are charged with winning the war on terror, and specifically with detaining and obtaining information from suspected terrorists, the officials’ policies on detention and interrogation, and their supervision of the implementation ofthose policies, is at least ‘incidental’ to those duties.” Appellees’ Br. 18.6In Haddon, we held that whether conduct is incidental depends on whether the conduct is a “direct outgrowth” of an employment assignment: According to the D.C. Court of Appeals, conduct is “incidental” to an employee's legitimate duties if it is “foreseeable.” “Foreseeable” in this context does not carry the same meaning as it does in negligence cases; rather, it requires the court to determine whether it is fair to charge employers with responsibility for the intentional torts of their employees. To be foreseeable,the torts must be “‘a direct outgrowth of the employee’s instructions or job assignment.’”68 F.3d at 1424 (quoting Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. 1984) (quoting Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 32 (D.C. 1979))).More recently, in Ballenger, although we did not explicitly use Boykin’s “direct outgrowth language,” we nonetheless emphasized that whether conduct is incidental depends “on theunderlying dispute or controversy, not on the nature of the tort.” 444 F.3d at 664 (internal quotation omitted). We explained that the “incidental” prong “is broad enough to embrace anyintentional tort arising out of a dispute that was originally undertaken on the employer’s behalf.” Id. (internal quotation omitted). In Ballenger, we examined whether a congressman’s allegedly defamatory comments made during a telephone conversation fell within the scope of his office. We explained that “[t]he appropriate question, then, is whether that telephone conversation—not the allegedly defamatory sentence—was the kind of conduct Ballenger was employed to perform.” Id.Because “[s]peaking to the press during regular work hours in response to a reporter’s inquiry falls within the scope of a congressman’s ‘authorized duties,’” we held that the allegedly defamatory statement was incidental to his office. Id. at 664-65. Similarly, in Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976), this Court upheld a jury verdict holding a deliveryman’s employer liable because the employee acted within the scope of his employment when he assaulted and raped a customer. The Court reasoned that the assault “arose naturally and immediately between [the deliveryman] and the plaintiff about two items of great significance in connection with his job[:] the request of the plaintiff . . . to inspect the mattress and springs before payment . . . and [the deliveryman’s] insistence on getting cash rather than a check.” Id. at 652. The Court also noted that “[t]he dispute arose out of the very transaction which had brought [the deliveryman] to the premises.” Id; see also Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981) (upholding juryverdict that laundromat employee acted within scope of his employment when he shot customer during dispute over removal of clothes from washing machine because “[t]he assault arose out of the transaction which initially brought [the customer] to the premises . . . and was triggered by a dispute over the conduct of the employer’s business”); Howard Univ. v. Best, 484 A.2d 958, 987 (D.C. 1984) (holding that jury could reasonably find that university dean acted within scope of employment when he sexually harassed faculty member during faculty, administrative and other professional meetings). In contrast, the District of Columbia courts have held that tortious conduct is not “incidental” to the performance of authorized duties if the conduct underlying the tort is unrelated to the employee’s instructions or job assignment. For example, in Penn Central Transportation Co. v. Reddick, 398 A.2d 27 (D.C. 1979), the court held that a railroad employee was not acting within the scope of his employment when he kicked a taxicab driver while traveling between work sites. It concluded that the employee’s action “was neither a direct outgrowth of [his] instructions or job assignment, nor an integral part of the employer’s business activity,” noting that “nothing in the business of running a railroad . . . makes it likely that an assault will occur between a railroad brakeman and a taxicab driver over the celerity with which the latter will provide a taxicab ride to the former.” Id. at 32; see also Boykin, 484 A.2d at 564 (teacher was not acting within scope of employment when he sexually assaulted student because teacher was not then performing teaching responsibilities). And our court, in Haddon, held that a White House electrician was not acting within the scope of his employment when he threatened the White House chef with physical harm. 68 F.3d at 1425. We noted that the electrician’s “alleged tort did not arise directly out of his instructions or job assignment as a White House electrician” because “[u]nlike the rape in Lyon and the shooting in Johnson, the electrician’s threat did not stem from a dispute over the performance of his work.” Id. (emphasis in original). We also observed that “[u]nlike the sexual harassment in Howard University, the electrician was not performing his assigned duties at the time of the incident.” Instead, we concluded that his conduct was “closer to the kick in Penn Central and the assault in Boykin” because “[a]s in those cases, the electrician’s conduct was completely unrelated to his official responsibilities.” Id.The plaintiffs concede that the “torture, threats, physical and psychological abuse inflicted” on them, which were allegedly approved, implemented, supervised and condoned by the defendants, were “intended as interrogation techniques to be used on detainees.” Compl. ¶ 141. In fact, as the district court correctly noted, “the complaint alleges torture and abuse tied exclusively to the plaintiffs’ detention in a military prison and to the interrogations conducted therein.” 414 F. Supp. 2d at 34. Under Ballenger, then, the underlying conduct—here, the detention and interrogation of suspected enemy combatants—is the type of conduct the defendants were employed to engage in. Just as the telephone conversation in Ballenger, the mattress delivery in Lyon and the removal of clothes from the washing machine in Thompson was each part of the employee’s job description or assignment, the detention and interrogation of suspected enemy combatants is a central part of the defendants’ duties as military officers charged with winning the war on terror. See Ballenger, 444 F.3d at 664; Lyon, 533 F.2d at 652; 7Comment f to section 229(2) states that “[t]he fact that the act done is a serious crime is a factor indicating that it is not in the scope of employment.” Johnson, 434 A.2d at 409. While the plaintiffs challenge the methods the defendants used to perform their duties, the plaintiffs do not allege that the defendants acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence. Cf. Penn Cent., 398 A.2d at 32; Boykin, 489 A.2d at 564. Therefore, the alleged tortious conduct was incidental to the defendants’ legitimate employment duties. Section 229(2)(j) of the Restatement (Second) of Agency provides, in pertinent part, that “[i]n determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to beconsidered: . . . whether or not the act is seriously criminal.”7 In alleging that the defendants formulated, approved and implemented a policy of torture, the plaintiffs have plainly alleged “seriously criminal” conduct. But criminal conduct is not per se outside the scope of employment. See Restatement (Second) of Agency § 231 (“An act may be within the scope ofemployment although consciously criminal or tortious.”); Johnson, 434 A.2d at 409 (laundromat employee shot customer over laundry dispute); Lyon, 533 F.2d at 652 (deliveryman assaulted and raped customer following delivery dispute); Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758 (D.C. 2001) (rule that sexual assaults are automatically outside scope of employment “too broad”). Citing § 229(2)(j) of the Restatement, the plaintiffs argue nonetheless that the serious criminality of the defendants’ alleged conduct precluded the district court from holding—as a matter of law—that their conduct was within the scope of their employment. Here, however, the district court apparently 8Unlike the determination of scope of employment in a respondeatsuperior case in the District of Columbia, where under local law the issue is a jury question, see e.g., Johnson, 434 A.2d at 407-09; Lyon, 533 F.2d at 652, our precedent holds that the court determines whether conduct falls within the scope of employment under the Westfall Act, conducting an evidentiary hearing only if necessary to resolve factual disputes. See Kimbro, 30 F.3d at 1509 (“If there is a material dispute as to the scope [of employment] issue the district court must resolve it at an evidentiary hearing.”); Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003) (same); cf. Jamison v. Wiley, 14 F.3d 222, 236 (4th Cir. 1994) (“The federal courts of appeals have consistently recognized that a district court has the power to hold a limited evidentiary hearing to resolve factual disputes that bear on a scope-of-employment issue properly before it in a Westfall Act case.”). In a more recent case, we reversed the district court’s grant of summary judgment based on its conclusion as a matter of law that the defendant Smithsonian employee acted within the scope of her employment under the Westfall Act. Majano v. United States, 469 F.3d 138 (D.C. Cir. 2006). In Majano, we remanded to the district court in light of a factual dispute and included the comment that “scope of employment questions are generally viewed as questions of fact best resolved by a jury.” Id. at 140. At oral argument here, the plaintiffs’ counsel maintained that the Majano comment makes the scope of employment under the Westfall Act a jury question. See Recording of 9/14/2007 Oral Argument at 7:45-8:32 (“Under Majano, [scope of employment] would be a jury [question]. Under Kimbro v. Velten, the initial suggestion was that it would be an evidentiary hearing before a court after discovery. . . . Majano seemed to move from Kimbro v. Velten and suggest that it was a jury issue.”). But the assumed the truth of the plaintiffs’ allegation that the defendants’ conduct was seriously criminal. 414 F. Supp. 2d at 34 (concluding that “torture and inhumane treatment wrought upon captives by their captors” was “‘direct outgrowth of the employees’ instructions and job assignment’”) (quoting Haddon, 68 F.3d at 1424) (alteration omitted). Accordingly, regardless whether the court or a jury resolves factual disputes in a Westfall Act action,8 nothing would be gained by an evidentiary Majano holding does not retreat from Kimbro, which case had earlier made clear that the court is to decide any factual dispute in a Westfall Act action. Kimbro, 30 F.3d at 1509. Both Kimbro and Majano disposed of Westfall Act actions as a matter of law, Kimbro by granting a motion to dismiss, Majano by granting summary judgment; Kimbro expressly instructed the district court to resolve any factual dispute while Majano simply noted the existence of a factual dispute and remanded without mentioning Kimbro.hearing because the plaintiffs could, at most, simply re-establish that the defendants’ conduct was seriously criminal. Where, as here, there are no material facts in dispute, the court may decide a Rule 12(b) motion as a matter of law. See, e.g., Ballenger, 444 F.3d at 663 (affirming district’s court dismissal of tort claim based on determination that defendant acted within scope of employment). If conduct is seriously criminal, the Restatement explainsthat it is generally less likely that the conduct comes within the scope of employment:The fact that the servant intends a crime, especially if the crime is of some magnitude, is considered in determining whether or not the act is within theemployment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result. The master can reasonably anticipate that servants may commit minor crimes in the prosecution of the business, but serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do. Restatement (Second) of Agency § 231 cmt. a. While it may generally be unexpected that seriously criminal conduct will arise “in the prosecution of the business,” here it was foreseeable that conduct that would ordinarily be 9While the plaintiffs do not rely on the other nine factors listed in section 229, they do contend that the district court erroneouslydetermined the scope of employment without allowing discovery thereto. See infra pp. 25-27. indisputably “seriously criminal” would be implemented bymilitary officials responsible for detaining and interrogating suspected enemy combatants. As in Lyon, the tortious conduct “was triggered . . . or motivated or occasioned by . . . the conduct then and there of the employer’s business” even though it was seriously criminal. Lyon, 533 F.2d at 655; see also Johnson, 434 A.2d at 409 (laundromat employee acted within scope of employment because “[the employee] had no previous relations with [the victim] which would indicate that the tort was personal” and “[n]o subject unrelated to the [laundry] was ever made a part of the conversation between the men”). Therefore, the allegations of serious criminality do not alter our conclusion that the defendants’ conduct was incidental to authorizedconduct.9 Because the defendants’ alleged conduct came within the scope of their office/employment, the three ATS claims were properly “restyled as [claims] against the United States that [are] governed by the [FTCA].” Ballenger, 444 F.3d at 662; see Rasul, 414 F. Supp. 2d at 38-39. Although the district court did not elaborate—and the parties similarly do not discuss it—we must examine whether the restyled claims against the United States were properly dismissed for lack of jurisdiction. The district court stated only that “[b]ecause the plaintiffs in this case did not proceed against the United States, they did not first present their claim to the appropriate Federal agency” and therefore “the plaintiffs have not exhausted their administrativeremedies.” 414 F. Supp. 2d at 39.The FTCA provides that “[a]n action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the 10See 28 C.F.R. § 14.2(a) (“[A] claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied bya claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing . . . .”); 32 C.F.R. § 750.6(b) (claim against Department of the Navy submitted to “Tort Claims Unit Norfolk,” “Office of the Judge Advocate General,” “commanding officer of the Navy or Marine Corps activity involved if known, the commanding officer of anyNavy or Marine activity, preferably the one nearest to where the accident occurred, or the local Naval Legal Service Commandactivity”); id. § 842.4 (claim against Department of the Air Force filed “at the base legal office of the unit or installation at or nearest towhere the accident or incident occurred”); id. §§ 536.3, 536.25 (claim against Department of the Army handled by “area claims office” or “claims processing office”).appropriate Federal agency and his claim shall have been finallydenied by the agency in writing.” 28 U.S.C. § 2675(a). Asnoted earlier, supra p. 12, we view the failure to exhaustadministrative remedies as jurisdictional. See Simpkins, 108F.3d at 371. Accordingly, section 2675(a) required the plaintiffsto file an administrative claim with either the Department ofDefense (DoD) or the appropriate military department beforebringing suit. See 28 C.F.R. § 14.1 (under FTCA, “termsFederal agency and agency . . . include the executivedepartments [and] the military departments”). Since theirrelease in 2004 at least, the plaintiffs have presumably been ableto comply with the exhaustion requirements of FTCA—indeed,they do not argue otherwise. The record is devoid, however, ofany suggestion that they complied with any of the proceduresgoverning the filing of an administrative claim with DoD or oneof the military departments.10 Accordingly, the district court2511The detainees argue in the alternative that even if an employee’sconduct is within the scope of his employment, the Westfall Act “doesnot extend or apply to a civil action” brought (1) “for a violation of theConstitution of the United States” or (2) “for a violation of a statute ofthe United States under which such action against an individual isotherwise authorized.” 28 U.S.C. § 2679(b)(2)(A)-(B). The plaintiffsmaintain that the first exception applies because they allege Eighthand Fifth Amendment claims (Counts V-VI) in addition to their ATSclaims (Counts I-III) and that “civil action” refers to the entire actionrather than an individual claim. Yet, as the First Circuit has observed,“[w]here a single case involves multiple claims, certification isproperly done at least down to the level of individual claims and notfor the entire case viewed as a whole.” Lyons v. Brown, 158 F.3d 605,607 (1st Cir. 1998). This court—as have a number of othercircuits—has permitted the substitution of the United States if a claimwithin the Westfall Act exception is joined with unexcepted claims.See, e.g., Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 368,370-71 (D.C. Cir. 1997) (substituting United States for defendant oncommon law tort claims notwithstanding defendant also charged withconstitutional claims); see also RMI Titanium Co. v. WestinghouseElec. Corp., 78 F.3d 1125, 1132, 1142-44 (6th Cir. 1996) (substitutingUnited States for defendant on common law tort claimsnotwithstanding additional Sherman Act and Lanham Act claims);Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 867 (9th Cir.1992) (substituting United States for defendant on common law tortclaims notwithstanding additional Bivens claims); Duffy v. UnitedStates, 966 F.2d 307, 309, 314 (7th Cir. 1992) (substituting UnitedStates for defendant on common law tort claims notwithstandingadditional Bivens and 42 U.S.C. § 1985 claims). Accordingly, theplaintiffs’ claims do not fall within the first exception to the WestfallAct and they do not rely on the second exception thereto.properly dismissed the three ATS claims for lack of subjectmatter jurisdiction.112. DiscoveryThe plaintiffs assert that the district court erred bydismissing their claims without allowing discovery on the scope26of employment question. But discovery is not warranted if “theplaintiff ‘did not allege any facts in his complaint or in anysubsequent filing . . . that, if true, would demonstrate that [thedefendant] had been acting outside the scope of hisemployment.’” Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir.2003) (alteration in Stokes) (quoting Singleton v. United States,277 F.3d 864, 871 (6th Cir. 2002)). For example, in Stokes, afederal employee (Stokes) sued coworkers for defamationarising from their statements that Stokes had failed to performhis duties as a law enforcement officer of the United StatesGovernment Printing Office. Id. at 1212. Stokes alleged thatcoworkers “destroy[ed] critical evidence, prepar[ed] andsubmit[ted] false affidavits by use of threat and coercion, andengag[ed] in other criminal acts.” Id. at 1216. While noting that“[i]t is unclear whether evidence of such conduct alone wouldbe sufficient under District of Columbia law,” we recognizedthat evidence of such conduct might reveal the coworkers’“intent to prevent the best candidate, namely Stokes, fromgetting [a] promotion . . . [and] indicate that they hadmaliciously acted contrary to their employer’s interest and,therefore, outside the scope of their employment.” Id.Accordingly, we decided that Stokes was entitled to “at leastlimited discovery on the scope-of-employment issue.” Id. Incontrast, even if the detainees were to establish that thedefendants authorized, implemented, supervised and condonedtorture and detention based on evidence obtained throughdiscovery, the defendants’ conduct would nonetheless fall withinthe scope of their employment because the defendants wereemployed to detain and interrogate suspected enemy combatantsand the plaintiffs concede that the alleged torture and detentionwere “intended as interrogation techniques to be used ondetainees.” Compl. ¶ 141. The plaintiffs thus failed to allegeany facts that, if proven, would establish that the defendantswere acting outside the scope of their employment and thedistrict court did not abuse its discretion in denying the plaintiffs2712Neither the plaintiffs’ complaint nor their briefs identify thoseportions of the Geneva Convention Relative to the Protection ofPrisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, orthe Geneva Convention Relative to the Protection of Civilian Personsin Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, thedefendants allegedly violated.discovery. Islamic Am. Relief Agency v. Gonzales, 477 F.3d728, 737 (D.C. Cir. 2007) (“‘The district court has broaddiscretion in its handling of discovery, and its decision to allowor deny discovery is reviewable only for abuse of discretion.’”(quoting Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988))).B. The Geneva Conventions ClaimSimilar to Counts I-III, Count IV of the plaintiffs’ complaintalleges that they were “held arbitrarily, tortured and otherwisemistreated during their detention” in violation of the GenevaConventions.12 Compl. ¶ 181. As already noted, the WestfallAct provides that “‘[t]he remedy against the Government underthe FTCA ‘is exclusive of any other civil action or proceedingfor money damages . . . against the employee’ and thenreemphasizes that ‘[a]ny other civil action or proceeding formoney damages . . . against the employee . . . is precluded.’”United States v. Smith, 499 U.S. 160, 165-66 (1991) (quoting 28U.S.C. § 2679(b)(1)). The plaintiffs’ claim based on the GenevaConventions is for money damages and the alleged conduct fallswithin the defendant’s scope of employment for the reasonsdiscussed supra pp. 16-23. Similarly, the plaintiffs’ argumentthat the first exception to the Westfall Act applies because theyalleged Eighth and Fifth Amendment claims (Counts V-VI) inaddition to their Geneva Conventions claim is rejected for thereasons discussed supra note 11. The Geneva Conventionsclaim is therefore precluded by the Westfall Act and the districtcourt properly dismissed the claim for failure to exhaustadministrative remedies. See Simpkins, 108 F.3d at 371.2813“The Privilege of the Writ of Habeas Corpus shall not besuspended, unless when in Cases of Rebellion or Invasion the publicSafety may require it.” U.S. Const. art. I, § 9, cl. 2.C. The Bivens ClaimsThe plaintiffs assert two Bivens claims for violations of theirFifth and Eighth Amendment rights. They allege that thedefendants’ challenged conduct constituted cruel and unusualpunishment in violation of the Eighth Amendment. Compl.¶ 186. Additionally, they claim that the “cruel, inhuman ordegrading” conditions at Guantanamo violated their substantivedue process rights and their “arbitrary and baseless detention”violated their procedural due process rights, both in violation ofthe Fifth Amendment. Compl. ¶¶ 194-95. The defendants firstrespond that the detainees, as aliens located outside sovereignUnited States territory at the time of the alleged violations, hadno rights protected by the Constitution. Even assuming theplaintiffs were protected by the Constitution, the defendantssubmit that any rights they possessed thereunder were notclearly established at the time of the alleged violations and thedefendants are therefore entitled to qualified immunity from suitpursuant to Harlow v. Fitzgerald, 457 U.S. 800 (1982), Mitchellv. Forsyth, 472 U.S. 511 (1985), and their progeny.We recently held that Guantanamo detainees lackconstitutional rights because they are aliens without property orpresence in the United States, Boumediene v. Bush, 476 F.3d981, 984 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).Boumediene involved a Suspension Clause13 challenge to theDetainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005,119 Stat. 2680, 2740-44 (2005) (DTA) (amending 28 U.S.C.§ 2241), and the Military Commissions Act of 2006, Pub. L. No.109-366, § 7, 120 Stat. 2600, 2635-36 (2006) (MCA) (amending28 U.S.C. § 2241). The DTA was enacted in response to theSupreme Court’s decision in Rasul v. Bush, 542 U.S. 466, 483-84 (2004), see Boumediene, 476 F.3d at 985, which held that29federal courts have subject matter jurisdiction over petitionsfiled by Guantanamo detainees seeking a writ of habeas corpuspursuant to 28 U.S.C. § 2241. The DTA stripped federal courtsof subject matter jurisdiction over detainees’ habeas petitionsexcept as provided therein. DTA § 1005(e), 119 Stat. at 2742(“Except as provided in section 1005 [creating Combatant StatusReview Tribunal], no court, justice, or judge shall havejurisdiction to hear or consider . . . (1) an application for a writof habeas corpus filed by or on behalf of an alien detained by theDepartment of Defense at Guantanamo Bay, Cuba; or (2) anyother action against the United States or its agents relating toany aspect of the detention by the Department of Defense of analien at Guantanamo Bay, Cuba . . . .”). The next year, theSupreme Court held that the DTA did not apply to habeaspetitions pending at the time the DTA was enacted. Hamdan v.Rumsfeld, 126 S. Ct. 2749, 2769 n.15 (2006) (“[W]e concludethat [the DTA] does not strip federal courts’ jurisdiction over[habeas] cases pending on the date of the DTA’s enactment.”).In response to Hamdan, the Congress passed the MCA, makingthe DTA retroactive. MCA § 7(b), 120 Stat. at 2636 (“Theamendment [ousting the courts of subject matter jurisdictionover detainees’ habeas petitions] shall take effect on the date ofthe enactment of this Act, and shall apply to all cases, withoutexception, pending on or after the date of the enactment of thisAct which relate to any aspect of the detention, transfer,treatment, trial, or conditions of detention of an alien detainedby the United States since September 11, 2001.” (emphasisadded)).We held in Boumediene that neither the DTA nor the MCAviolates the Suspension Clause based in part on ourdetermination that “[p]recedent in this court and the SupremeCourt holds that the Constitution does not confer rights on alienswithout property or presence within the United States.” 476F.3d at 991. First, we explained that the “controlling case” wasJohnson v. Eisentrager, 339 U.S. 763 (1950), which involved3014In the Insular Cases, the Supreme Court extended “fundamentalpersonal rights” to United States territories. See Balzac v. Porto [sic]Rico, 258 U.S. 298, 312-13 (1922); Dorr v. United States, 195 U.S.138, 148 (1904). As noted in Boumediene, “in each of those cases,Congress had exercised its power under Article IV, Section 3 of theConstitution to regulate ‘Territory or other Property belonging to theUnited States,’ U.S. Const., art. IV, § 3, cl. 2.” 476 F.3d at 992.German nationals convicted of war crimes who were held at aUnited States army base in Germany and who filed habeaspetitions to challenge their convictions and imprisonment. TheSupreme Court rejected the proposition “that the FifthAmendment confers rights upon all persons, whatever theirnationality, wherever they are located and whatever theiroffenses,” holding that the German nationals had noconstitutional right to petition for habeas corpus relief under theFifth Amendment. Id. at 783. We concluded in Boumedienethat any difference between Guantanamo and the United Statesarmy prison in Germany was “immaterial” because “[t]he textof the lease and decisions of circuit courts and the SupremeCourt all make clear that Cuba—not the United States—hassovereignty over Guantanamo Bay.” Boumediene, 476 F.3d at992. We noted that the Supreme Court decision followingEisentrager held that the Fourth Amendment did not protect anonresident alien from a DEA agent’s allegedly unreasonablesearch and seizure carried out in Mexico. Id. at 991 (citingUnited States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990)).We observed that the Supreme Court “found it ‘well establishedthat certain constitutional protections available to persons insidethe United States are unavailable to aliens outside ourgeographic borders.’” Id. at 991-92 (quoting Zadvydas v. Davis,533 U.S. 678, 693 (2001)). We rejected the detainees’ relianceon the Insular Cases,14 distinguishing those cases on the groundthat the Congress had exercised its power to regulate thoseterritories, whereas “[h]ere Congress and the President havespecifically disclaimed the sort of territorial jurisdiction they31asserted in Puerto Rico, the Philippines, and Guam.” Id. at 992.Finally, we explained that “[p]recedent in this circuit alsoforecloses the detainees’ claims to constitutional rights,” notingthat we had previously held that “‘non-resident aliens . . . plainlycannot appeal to the protection of the Constitution or laws of theUnited States’” and that a “‘foreign entity without property orpresence in this country has no constitutional rights, under thedue process clause or otherwise.’” Id. (quoting Pauling v.McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960); People’sMojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22(D.C. Cir. 1999)).The plaintiffs nonetheless assert that Boumediene conflictswith the Supreme Court’s holding in Rasul. Rasul reversed ourdecision in Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.2003), in which we had held that the federal court’s habeasjurisdiction did not extend to aliens detained by United Statesmilitary forces outside the United States. 321 F.3d at 1144.Although the holding was limited to the jurisdictional question,the Al Odah opinion included a discussion of whether basicconstitutional protections were available to aliens abroad.Relying on Eisentrager, inter alia, we concluded that detaineeswere not entitled to due process, id. at 1141, and accordingly,“[w]e cannot see why, or how, the writ may be made availableto aliens abroad when basic constitutional protections are not.”Id. But in Rasul, the Supreme Court, significantly, did not reachthe issue of whether Guantanamo detainees possessconstitutional rights and instead based its holding on 28 U.S.C.§ 2241 only. Rasul, 542 U.S. at 478-84. For example, the Courtexplained that “persons detained outside the territorialjurisdiction of any federal district court no longer need rely onthe Constitution as the source of their right to federal habeasreview.” Id. at 478. It emphasized that “[w]hat is presently atstake is only whether the federal courts have jurisdiction todetermine the legality of the Executive’s potentially indefinitedetention of individuals who claim to be wholly innocent of3215Boumediene is currently before the Supreme Court on certiorarireview. Nevertheless, we must follow Circuit precedent until andunless it is altered by our own en banc review or by the High Court.See United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006)(“[W]e are, of course, bound to follow circuit precedent absentcontrary authority from an en banc court or the Supreme Court.”(citing Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C. Cir. 1979))).16See supra note 3.17Because Boumediene was then pending in our Court, the districtcourt assumed the first step of the Saucier inquiry and proceeded toanalyze “whether the plaintiffs’ alleged constitutional rights wereclearly established at the time of the alleged abuse.” 414 F. Supp. 2dat 41.wrongdoing.” Id. at 485. Thus, Boumediene does not conflictwith Rasul and remains the law of this Circuit.15Even assuming arguendo the detainees can assert their Fifthand Eighth Amendment claims, those claims are nonethelesssubject to the defendants’ assertion of qualified immunity. Indetermining whether qualified immunity applies, as we earliernoted,16 the court must first determine whether “[t]aken in thelight most favorable to the party asserting the injury . . . the factsalleged show the officer’s conduct violated a constitutionalright.” Saucier, 533 U.S. at 201. “[I]f a violation could be madeout on a favorable view of the parties’ submissions, the next,sequential step is to ask whether the right was clearlyestablished.” Id. at 201. “A constitutional right was ‘clearlyestablished’ at the time of the events in question only if ‘[t]hecontours of the right [were] sufficiently clear that a reasonableofficer would understand that what he [was] doing violate[d]that right.’” Butera v. District of Columbia, 235 F.3d 637, 646(D.C. Cir. 2001) (quoting Anderson v. Creighton, 483 U.S. 635,640 (1987) (alterations in Butera)).17The plaintiffs argue that a reasonable person would havebeen on notice that the defendants’ alleged conduct was33unconstitutional because the “prohibition on torture isuniversally accepted.” Appellants’ Br. 38. The issue we mustdecide, however, is whether the rights the plaintiffs press underthe Fifth and Eighth Amendments were clearly established at thetime of the alleged violations.An examination of the law at the time the plaintiffs weredetained reveals that even before Boumediene, courts did notbestow constitutional rights on aliens located outside sovereignUnited States territory. Supreme Court and Circuit precedent,consistent with Eisentrager’s rejection of the proposition “thatthe Fifth Amendment confers rights upon all persons, whatevertheir nationality, wherever they are located and whatever theiroffenses,” concluded that non-resident aliens enjoy noconstitutional rights. Eisentrager, 339 U.S. at 783; see, e.g.,Verdugo-Urquidez, 494 U.S. at 269 (Fourth Amendment did notapply to the search and seizure of an alien’s Mexican residence);Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004), cert. denied,543 U.S. 1146 (2005) (“The Supreme Court has long held thatnon-resident aliens who have insufficient contacts with theUnited States are not entitled to Fifth Amendmentprotections.”); People’s Mojahedin Org. of Iran. v. U.S. Dep’tof State, 182 F.3d 17, 22 (D.C. Cir. 1999) (“A foreign entitywithout property or presence in this country has noconstitutional rights, under the due process clause orotherwise.”); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d1412, 1428 (11th Cir. 1995) (Cuban and Haitian refugees atGuantanamo Bay lacked First and Fifth Amendment rights). Inlight of this precedent, we agree with the district court that “[t]heplaintiffs have provided no case law, and the court finds none,supporting a conclusion that military officials would have beenaware, in light of the state of the law at the time, that detaineesshould be afforded the rights they now claim.” 414 F. Supp. 2dat 44.3418Since the plaintiffs’ release, we have held that Guantanamo isnot sovereign United States territory. Boumediene, 476 F.3d at 992(“The text of the lease and decisions of circuit courts and the SupremeCourt all make clear that Cuba—not the United States–has sovereigntyover Guantanamo Bay.”); see also Rasul v. Bush, 542 U.S. 466, 475(2004) (characterizing Guantanamo Bay as a “territory over which theUnited States exercises plenary and exclusive jurisdiction, but not‘ultimate sovereignty’”); Detainee Treatment Act of 2005, Pub. L. No.109-148, § 1005, 119 Stat. 2680, 2740-44 (2005) (provision detailingstatus review procedure for detainees entitled “Procedures for StatusReview of Detainees Outside the United States”) (emphasis added).Finally, the plaintiffs contend that they were not nonresidentaliens while they were at Guantanamo because the lawrecognized Guantanamo as sovereign United States territory atthe time of the alleged violations. They are mistaken. TheUnited States entered into an indefinite lease with Cuba in 1903for the Guantanamo Bay Naval Base. Lease of Lands forCoaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, T.S. No.418, Art. III. The lease provides that “the United Statesrecognizes the continuance of the ultimate sovereignty of theRepublic of Cuba” and “the Republic of Cuba consents thatduring the period of the occupation by the United States . . . theUnited States shall exercise complete jurisdiction and controlover and within said areas.” Id. (emphasis added). Precedentregarding other leased military bases also supported theconclusion that Guantanamo is not a United States territory. Forexample, in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 390(1948), the Supreme Court stated that a leased military base inBermuda was “beyond the limits of national sovereignty.”Similarly, in Eisentrager, the Court held that a United Statesmilitary prison in Germany was outside the sovereign territoryof the United States. 339 U.S. at 778. Based on the plain textof the lease and on case law, it was not clearly established at thetime of the alleged violations—nor even today—that areasonable officer would know that Guantanamo is sovereignUnited States territory.18 Accordingly, we affirm the district35But see Rasul, 542 U.S. at 487 (Kennedy, J., concurring in thejudgment) (“Guantanamo Bay is in every practical respect a UnitedStates territory . . . .”). As noted, Boumediene is currently before theSupreme Court on certiorari review.19The district court found it necessary to conclude thatGuantanamo is a “territory and possession of the United States” inorder to allow the plaintiffs’ RFRA claim to proceed. Rasul, 433F. Supp. 2d at 62-66. Guantanamo’s status, however, is notdeterminative of RFRA’s applicability. Section 2000bb-2(1) defines“government” as “a branch, department, agency, instrumentality, andofficial (or other person acting under color of law) of the UnitedStates, or of a covered entity.” Whether or not “covered entity,”which includes “each territory and possession of the United States,”§ 2000bb-2(2), applies to Guantanamo, the defendants are “official[s]of the United States” and therefore RFRA applies to their actions.court’s dismissal of the plaintiffs’ two constitutional claims.D. The RFRA ClaimThe plaintiffs’ final claim alleges that the defendants“inhibited and constrained religiously motivated conduct centralto Plaintiffs’ religious beliefs,” “imposed a substantial burden onPlaintiffs’ abilities to exercise or express their religious beliefs”and “regularly and systematically engaged in practicesspecifically aimed at disrupting Plaintiffs’ religious practices&rdq