Loophole on loophole. There’s this, relating to intentionally inflicting pain or suffering [in 11(a)]:

other than pain or suffering incidental to lawful sanctions

Excluding statements made following torture, etc., “except against a person accused of torture or such treatment as evidence that the statement was made” seems to mimic traditional evidence laws, such as those that admit evidence not as fact but to show someone’s state of mind or to impeach a witness for having made a prior inconsistent statement.

Whether the trier of fact actually limits their use of that often highly prejudicial information to such purpose is open to debate. Here, it would be more useful if the statement following torture were admitted solely for the purpose of establishing the elements of the crime a torturer is alleged to have committed.

The derivative evidence rule is big enough for a Hummer. “The interests of justice”? From which perspectives, protecting the rights of the accused and limiting incentives for captors to abuse their power? How does one establish that evidence would have been obtained, but for torture, or for multiple layers of tortured evidence?

Why must the exclusion be an affirmative defense, why must the defendant first object before the judge refuses to admit tortured evidence. How is a sleep-deprived, abused, tortured, drugged and beaten prisoner expected to know which statements he made and which were made under torture, as opposed to what the court might conclude is harsh, but legal treatment incidental to the conduct of hostilities?

These defendants aren’t allowed to see their own notes or to confront or know the identities of those who interrogated them. They are rarely allowed to see their own defense counsel and must assume all such communications are monitored. The asymetrical burdens are considerable.

I bolded the places where I believe the DC Circuit Court has clearly ruled that habeas is a jurisdictional matter, and due process a constitutional one, and that those outside the geographical U.S. (non-resident aliens) have no due process rights, or 8th amendment rights. I wasn’t saying it because I thought it would be nice and obtuse to say so, the court specifically stated that the Supreme Court had only overruled it on habeas because it didn’t require constitutional rights only court jurisdiction, but did not on due process rights. bmaz asserts that this is something that has to do with what kind of case this is, and I don’t understand, since that isn’t the language used by the Court. Yes, there is a question of whether or not the defendants should have known this was the law, but they handle it by saying, essentially, that they could not have, since it isn’t the law. That’s how they put it, that their statements on lack of constitutional rights have not been reversed by the Supreme Court. But, as bmaz rightly points out, I’m not a lawyer. So it would be very nice if a lawyer, especially one like bmaz who understands this decision so clearly, would explain these passages.

ca pp31-33 Rasul v. Myers:

The plaintiffs nonetheless assert that Boumediene conflicts with the Supreme Court’s holding in Rasul. Rasul reversed our decision in Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), in which we had held that the federal court’s habeas jurisdiction did not extend to aliens detained by United States military 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 basic constitutional protections were available to aliens abroad. Relying on Eisentrager, inter alia, we concluded that detainees were not entitled to due process, id. at 1141, and accordingly, “[w]e cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not.” But in Rasul, the Supreme Court, significantly, did not reach the issue of whether Guantanamo detainees possess constitutional rights and instead based its holding on 28 U.S.C. § 2241 only. Rasul, 542 U.S. at 478-84. For example, the Court explained that “persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.” Id. at 478. It emphasized that “[w]hat is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” Id. at 485. Thus, Boumediene does not conflict with Rasul and remains the law of this Circuit.15

Even assuming arguendo the detainees can assert their Fifth and Eighth Amendment claims, those claims are nonetheless subject to the defendants’ assertion of qualified immunity. In determining whether qualified immunity applies, as we earlier noted,16 the court must first determine whether “[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged show the officer’s conduct violated a constitutional right.” Saucier, 533 U.S. at 201. “[I]f a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id. at 201. “A constitutional right was ‘clearly established’ at the time of the events in question only if ‘[t]he contours of the right [were] sufficiently clear that a reasonable officer 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)).17

The plaintiffs argue that a reasonable person would have been on notice that the defendants’ alleged conduct was unconstitutional because the “prohibition on torture is universally accepted.” Appellants’ Br. 38. The issue we must decide, however, is whether the rights the plaintiffs press under the Fifth and Eighth Amendments were clearly established at the
time of the alleged violations.

An examination of the law at the time the plaintiffs were detained reveals that even before Boumediene, courts did not bestow constitutional rights on aliens located outside sovereign United States territory. Supreme Court and Circuit precedent, consistent with Eisentrager’s rejection of the proposition “that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses,” concluded that non-resident aliens enjoy no constitutional rights. Eisentrager, 339 U.S. at 783; see, e.g., Verdugo-Urquidez, 494 U.S. at 269 (Fourth Amendment did not apply 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 that non-resident aliens who have insufficient contacts with the United States are not entitled to Fifth Amendment protections.”); People’s Mojahedin Org. of Iran. v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (“A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.”); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412, 1428 (11th Cir. 1995) (Cuban and Haitian refugees at Guantanamo Bay lacked First and Fifth Amendment rights). In light of this precedent, we agree with the district court that “[t]he 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.” 414 F. Supp. 2d at 44.

ca. p. 42

Because RFRA’s purpose was thus to restore what, in the Congress’s view, is the free exercise of religion guaranteed by the Constitution, “person” as used in RFRA should be interpreted as it is in constitutional provisions. Cf. Wachovia Bank v. Schmidt, 546 U.S. 303, 315-316 (2006) (“[U]nder the in pari materia canon of statutory construction, statutes addressing the same subject matter generally should be read ‘as if they were one law.’” (quoting Erlenbaugh v. United States, 409 U.S. 239, 243 (1972))); United States v. Ursery, 518 U.S. 267, 304-05 (1996) (“[T]he Double Jeopardy Clause is part of the same Amendment as the Self-Incrimination Clause, and ought to be interpreted in pari materia.”). Construing “person” as used in the Fifth Amendment,23 the Supreme Court held almost sixty years ago that German nationals who were convicted of war crimes and held at a U.S. army base in Germany were not “persons” under
the Fifth Amendment and rejected the notion “that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses.” Johnson v. Eisentrager, 339 U.S. at 783.24 More recently, the Supreme Court held that “people” as used in the Fourth Amendment25 does not include non-resident aliens. In United States v. Verdugo-Urquidez, the Court held that the Fourth Amendment did not apply to the DEA’s search and seizure of an alien’s Mexican residence. 494 U.S. 259, 269 (1990). Citing Eisentrager’s “rejection of extraterritorial application of the Fifth Amendment,” the Court explained that “[i]f such is true of the Fifth Amendment, which speaks in the relatively universal term of ‘person,’ it would seem even more true with respect to the Fourth Amendment, which applies only to ‘the people.’” Id; see also Boumediene, 476 F.3d at 991-92(finding it “‘well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside our geographic borders.’” (quoting
Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).

We believe that RFRA’s use of “person” should be interpreted consistently with the Supreme Court’s interpretation of “person” in the Fifth Amendment and “people” in the Fourth Amendment to exclude non-resident aliens. Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose,26 they do not fall with the definition of “person.” Accordingly, the district court erred in denying the defendants’ motion to dismiss the plaintiffs’ RFRA claim.

For the foregoing reasons, we affirm the district’s court’s dismissal of counts I, II, III, IV, V and VI of the plaintiffs’ complaint and reverse the district court’s denial of the defendants’ motion to dismiss count VII thereof.

So ordered.