Former Detainees

Former Detainees in 2013

United States views on international law [1] in relation to Former Detainees: (1) Al Janko v. Gates

On March 1, 2013, the United States filed its brief in the U.S. Court of Appeals for the D.C. Circuit in a case brought by former detainee Abdul Rahim Abdul Razak Al Janko, a Syrian national. Al Janko v. Gates, No. 12-5017 (D.C. Cir.). After plaintiff's petition for habeas corpus was granted by a federal district court in the District of Columbia in 2009, he brought damages claims against government officials in their individual capacities, asserting violations of, inter alia, international law and the Fourth and Fifth Amendments to the U.S. Constitution. He also sought damages under the Federal Tort Claims Act (“FTCA”) from the United States for alleged violations of District of Columbia law. The district court dismissed plaintiff's claims and plaintiff appealed. The U.S. brief is available at (Secretary of State website) state.gov/s/l/c8183.htm. Excerpts below summarize the U.S. arguments for affirming the district court's dismissal of all claims. The U.S. brief relies, first, on the jurisdiction stripping provision of the Military Commissions Act (“MCA”), codified at 28 U.S.C. § 2241(e)(2), which says:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Some Aspects of Former Detainees

The U.S. brief also relies on past precedents including Rasul, discussed in this world legal encyclopedia (in relation to issues that took place in the year 2009) at 751-52, and Ali, discussed in this world legal encyclopedia (in relation to issues that took place in the year 2011) at 582.

Developments

Plaintiff filed a damages action against the United States and twenty current and former senior government officials, in their individual capacities, for harm allegedly stemming from his military detention. The district court's dismissal of plaintiff' action should be affirmed on one or more independent grounds.

Details

I. The district court correctly held that it lacked subject-matter jurisdiction over all of plaintiff's claims under 28 U.S.C. § 2241(e)(2). Plaintiff here was “determined by the United States to have been properly detained as an enemy combatant” as required by § 2241(e)(2) because two [Combatant Status Review Tribunals or] CSRTs concluded that he was an “enemy combatant.”

The subsequent grant by a district court of plaintiff's habeas petition does not alter this conclusion because a habeas ruling is not a “determin[ation] by the United States” within the meaning of § 2241(e)(2) and, in any event, § 2241(e)(2) is triggered by any prior determination that an individual was properly detained as an enemy combatant.

Plaintiff argues that § 2241(e)(2) is unconstitutional because it deprives him of a damages remedy, but this Court rejected that argument in Al-Zahrani v. Rodriguez, 669 F.3d 315, 319-20 (D.C. Cir. 2012). Although plaintiff argues that § 2241(e)(2) violates due process because his CSRT determinations were assertedly erroneous and violative of due process, plaintiff's arguments invoking due process are inconsistent with this Court's precedent that aliens at Guantanamo have no due process rights. In any case, it was not irrational for Congress to conclude that CSRT determinations should trigger application of the statute.

Former Detainees in 2013 (Continuation)

United States views on international law [1] in relation to Former Detainees: II. The district court's dismissal of plaintiff's constitutional claims asserted against the individual defendants may be affirmed on two independent grounds.

More about Former Detainees

A. First, the district court properly held that the individual defendants are entitled to qualified immunity because it was not clearly established during plaintiff's detention (which ended in 2009) that aliens at Guantanamo possessed any Fourth and Fifth Amendment rights. Boumediene v. Bush, 553 U.S. 723 (2008), is not to the contrary because it was expressly limited to the constitutional privilege of habeas corpus. In any event, the contours of any applicable Fourth and Fifth Amendment rights were not clearly established during plaintiff's detention. In addition, although this Court should not reach the question, the defendants are entitled to qualified immunity on the independent ground that controlling precedent holds that aliens detained at Guantanamo do not possess Fourth and Fifth Amendment rights.

Development

B. Although the district court did not reach the issue, its dismissal of the constitutional claims should also be affirmed on the alternative ground that special factors bar the recognition of a damages action in the military-detention context, as this Court has held in Rasul v. Myers, 563 F.3d 527, 532 n.5 (D.C. Cir. 2009) (“Rasul II”), Ali v. Rumsfeld, 649 F.3d 762, 773-74 (D.C. Cir. 2011), and Doe v. Rumsfeld, 683 F.3d 390, 394-97 (D.C. Cir. 2012). Plaintiff argues that his case does not implicate sensitive national security decisions because a district court has already determined on habeas review that he was not lawfully detained, but special factors bar the recognition of a Bivens action for the category of military-detention cases regardless of the specifics of a given plaintiff's case. In any event, plaintiff's action seeking to hold senior government officials liable for their roles in making decisions about plaintiff's detention, treatment, CSRTs, and transfer plainly implicates sensitive national security and military matters not addressed in the district court habeas decision. In addition, as in Doe, a judicially created damages remedy would be inappropriate here because Congress has devoted significant attention to military detainee matters but has declined to create a damages remedy.

Details

III. The district court correctly held that the United States properly substituted itself under the Westfall Act for the individual defendants on plaintiff's international law claims asserted under the ATS because the named defendants were acting within the “scope of their employment” at the time of the incidents alleged in the complaint. That holding is controlled by Ali and Rasul v. Myers, 512 F.3d 644, 654-63 (D.C. Cir. 2008) (“Rasul I”), vacated, 555 U.S. 1083, reinstated in relevant part, Rasul II, 563 F.3d at 528-29. Plaintiff's attempts to circumvent these rulings fail because the underlying conduct here—the management by senior Department of Defense officials of the detention and interrogation of an individual found by two CSRTs to have been an “enemy combatant”—is precisely the type of conduct that Rasul I and Ali held the defendants were employed to perform. In addition, plaintiff's argument that the defendants' purpose in engaging in the alleged conduct was not to serve their “master” is contradicted by his complaint, which levels no such allegations against any of the named defendants.

IV. The district court properly held that all of plaintiff's FTCA claims, including plaintiff's ATS claims that were converted into FTCA claims upon substitution by the United States, are barred because they “aris[e] in a foreign country,” 28 U.S.C. § 2680(k). Plaintiff argues that Guantanamo Bay, Cuba, is not a “foreign country” under § 2680(k), but the Supreme Court and other courts have held that “de jure sovereignty” is the relevant touchstone, and Cuba retains de jure sovereignty over Guantanamo. Although the district court did not reach the issue, plaintiff's international-law claims asserted under the ATS are also properly dismissed for the independent reason that plaintiff failed to exhaust his administrative remedies regarding those claims. In addition, the district court correctly held that plaintiff's international-law claims asserted under the ATS and FTCA were properly dismissed on the independent ground that they do not assert violations of the “law of the place,” 28 U.S.C. § 1346(b), i.e., state tort law. Although plaintiff argues that customary international law has been incorporated into D.C. law, any customary international law recognized by U.S. courts today as domestic law is federal law, which is not the “law of the place.”

Former Detainees: Civil Suits Against U.S. Officials

In relation to the international law practice and Former Detainees: Civil Suits Against U.S. Officials in this world legal Encyclopedia, please see the following section:

Use of Force, Arms Control, Disarmament, Nonproliferation

About this subject:

Use of Force

Under this topic, in the Encyclopedia, find out information on:

Detainees
U.S. court decisions and proceeding

Resources

Notes

Former Detainees in the Digest of United States Practice in International Law

Resources

Notes

Former Detainees in the Digest of United States Practice in International Law