Torture and the scope of employment

Steve Vladeck [University of Miami School of Law]: "Is torture or other forms of cruel, inhuman, or degrading treatment (CIDT) within the scope of government employment? At least somewhat surprisingly, according to this decision by Judge Urbina in the D.C. district court issued yesterday, the answer to that question is "yes."

At issue in the suit, Rasul v. Rumsfeld, are damages claims brought by a group of Guantanamo detainees based on various allegations, including that the detainees were tortured while in custody by, or under the watch of, various government officials, including Secretary Rumsfeld. Judge Urbina held that the government officials were entitled to qualified immunity on the plaintiffs' constitutional claims. More controversially, he also ruled that the government officials were entitled to substitute the government itself as defendants to the plaintiffs' international law-based claims, based on the Westfall Act, 28 U.S.C. [sec.] 2679(d), which allows such substitution for torts committed within the scope of employment. Needless to say, the government itself has sovereign immunity from such claims.

A necessary part of holding that the Westfall Act applied, though, was the court's determination that the plaintiffs' allegations -- of torture and other CIDT -- were scope-of-employment torts... Given that, as I explained earlier today over at PrawfsBlawg, the Westfall Act's legislative history is clear that egregious conduct can never be within the scope of governmental employment, at least for purposes of Section 2679, the district court's decision is tantamount to holding that torture and other CIDT, when committed by government officials, is not "egregious conduct."

There is surely an important, albeit separate, debate as to whether that's true. But given how quietly the court reaches the issue -- without truly confronting the implications of its holding -- its breadth is surprising. For a federal court, in the current climate, to hold that torture and other CIDT is not egregious conduct, and therefore is within the scope of government officials' employment, strikes me as, at the very least, a very significant and newsworthy holding."

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