Al Laithi Reply Brief Before the D.C. Circuit: Defining the Scope of Employment

In response to the government's brief, counsel for the Plaintiffs in Al Laithi v. Rumsfeld et. al.  filed a reply brief on Dec. 18th.  (The Plaintiffs---all former Guantanamo detainees---allege various abuses at the hands of U.S. government officials, and seek, among other things, civil damages from the officials in their individual capacities.) For the most part, the Plaintiffs chose not to respond to each of the government's points. Instead, the Plaintiffs primarily take issue with the District Court's holding that as a matter of law, "Defendants were acting within their scope of employment in continuing to detain and torture the non-enemy combatant Plaintiffs." For Al Laithi and his colleagues, the story is a simple one. While the Defendants may have been acting within their scope of employment in detaining and "torturing" suspected enemy combatants, the Plaintiffs in this case had been expressly cleared by a Combatant Status Review Tribunal. As a result, they were no longer suspected enemy combatants, and their detention and abuse accordingly did not fall within the Defendants' scope of employment. They write:

The Government argues that the imprisonment and torture of persons known not to be enemy combatants must fall within the scope of employment because the imprisonment and torture of suspected enemy combatants is within the scope. By that logic, the imprisonment of citizens—found not guilty after a trial—by a prison warden is within the scope of employment because a warden is authorized to imprison guilty felons. As a legal matter, and as a matter of common sense, the fact that the United States, through the Authorization for the Use of Military Force (“AUMF”), authorized the detention, interrogation, and possibly even torture of enemies and suspected enemies of the United States is not an unlimited authorization to imprison and torture anyone for any reason or no reason at all.

Having framed their case within this larger narrative, Al Laithi and the other Plaintiffs turn to the black letter doctrine. According to them, "[t]here are four elements that must be met in order for an employee’s act to be within his scope of employment: (1) the act must be 'of the kind he is employed to perform'; (2) the act must 'occur substantially within the authorized time and space limits'; (3) the act must be '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' must not be 'unexpectable by the master.'" The Plaintiffs then assert that their Complaint alleges facts that sufficiently negate at least three of these four elements: the work was not of the kind that the Defendants were hired to perform; the work was motivated by personal animus against the Plaintiffs and their religion rather than a desire to serve the United States; and the Defendants' torture of non-enemy combatants was not foreseeable. With respect to the first element, Al Laithi and company argue that their detention and abuse was "neither incidental to authorized conduct nor of the same general nature as authorized conduct." In particular, the Defendants had been authorized to detain and interrogate actual or suspected enemy combatants. But, and in keeping with their theme, the Plaintiffs affirm that "[d]etaining and torturing those who are known to be innocent simply cannot, as a matter of law, be the same kind of work as detaining and interrogating those suspected of terrorism." Indeed, they argue, it isn't even in the same ballpark. The brief then concludes by maintaining that the District Court erred in dismissing the Plaintiffs' claim that they were denied consular access in violation of the Vienna Convention on Consular Relations. The Plaintiffs argue that the first element of the scope of employment test is not met because "Defendants’ refusal contravened both the VCCR and United States policy," thereby putting it out of the range of "the kind of work" that Defendants were hired to perform. Oral argument has been set for February 21st before Judges Tatel, Brown, and Randolph.