Page:Judicial Activity Concerning Enemy Combatant Detainees -- Major Court Rulings .pdf/14

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings The government need only support its authority to detain using a "preponderance of evidence" standard. The panel also held that habeas courts assessing the validity of a petitioner's detention may properly consider hearsay evidence proffered by the government.

Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (per curiam), cert. denied, 130 S.Ct. 1013 (U.S. Dec. 14, 2009)

Four British nationals formerly detained at Guantanamo sued the Secretary of Defense and various military officers for damages, alleging that their treatment while in U.S. military custody violated their rights under the Fifth and Eighth Amendments to the Constitution, the Geneva Conventions, and other provisions of law. The district court dismissed the Bivens claims on the basis of qualified immunity, holding that the officers could not reasonably be expected to have anticipated that the plaintiffs, as aliens held overseas, would be entitled to rights under the U.S. Constitution. The D.C. Circuit twice affirmed, interpreting Boumediene (on remand) as "disclaim[ing] any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause," which, in the circuit court's view, appears to mean that those detained at Guantanamo have no rights under the Constitution (other than the right to petition for habeas corpus). It rested its holding, however, on its analysis of qualified immunity under Bivens, agreeing with the lower court that even if the Constitution does provide some protections to the plaintiffs, the defendants were protected by qualified immunity. Even were this not so clear, the D.C. Circuit noted a "special factor" precludes extending a Bivens remedy to plaintiffs; namely, the "[t]he danger of obstructing U.S. national security policy."

Having found that the claims for damages were barred by the Federal Tort Claims Act, the circuit court did not address whether Boumediene's holding invalidating section 7 of the MCA encompassed only the portion of the provision that stripped courts of jurisdiction over habeas claims, or whether the language eliminating other causes of action against the government had also been invalidated. District court judges have uniformly held that the language eliminating causes of action other than habeas corpus survived Boumediene.