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Tuesday, February 07, 2006

Damages, Gitmo, and the Quiet Torture Holding

Over at Opinio Juris, Julian Ku has a post about yesterday's interesting D.D.C. decision in Rasul v. Rumsfeld [public link not yet available; WL cite is 2006 WL 266570], to my knowledge the first final district court decision in a Guantanamo-based damages action. As Julian summarizes, Judge Urbina granted in part the government's motion to dismiss, holding, among other things, that the defendants (1) were entitled to sovereign immunity under the Westfall Act for the plaintiffs' international law-based claims; and (2) were entitled to qualified immunity for the plaintiffs' constitutional claims, since, to whatever extent the plaintiffs have constitutional rights, those rights were not "clearly established." [This actually strikes me as right, at least given the current state of qualified immunity law.]

There's a lot that's interesting about the decision, and Julian is probably correct that "if followed, [the decision] would bar almost all of the lawsuits seeking tort damages against U.S. government officials for violation of international law." But there's one holding central to the decision that just doesn't make any sense to me: For the Westfall Act to apply (and for the defendants to therefore be entitled to sovereign immunity on the international law claims), the defendants have to have been acting within the scope of their employment [see 28 U.S.C. [sec.] 2679(d)]. Yet, part of the plaintiffs' allegations is that they were tortured. So, here's the $64,000 question: How are U.S. government officials acting "within the scope of their employment" if/when they torture detainees?

Section 228 of the Restatement (Second) of Agency provides the following definition, on which the district court relied:

Conduct of a servant is within the scope of employment if, but only if: (1) it is of the kind he is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the master; and (4) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

Well, if "we don't torture," how is torture (1) "of the kind he is employed to perform," or (2) "the use of force not unexpectable by the master"?

I'm not, by any stretch, an expert on the law of agency, or on the Westfall Act and its scope, but this strikes me as dangerously wrong. That egregious governmental conduct necessarily falls outside the scope of governmental employment is axiomatic. Indeed, the drafters of the Westfall Act made this very point clear in the Report accompanying the bill:

[T]he United States will incur vicarious liability only for ... torts ... committed within the "scope of ... employment."   If an employee is accused of egregious misconduct, rather than mere negligence or poor judgment, then the United States may not be substituted as the defendant, and the individual employee remains liable.

In short, then, Judge Urbina effectively held yesterday that torture or other cruel, inhuman, and degrading treatment is not "egregious misconduct." That's why Julian is right when he proclaims the decision "a clear victory for the U.S. government in its litigation over the war on terrorism."

Update: Courtesy of PACER, I've located a public copy of Judge Urbina's decision.

Posted by Steve Vladeck on February 7, 2006 at 02:59 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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