Alien Tort Statute

Al-Zahrani Oral Argument Mini-Summary

By Benjamin Wittes
Thursday, October 6, 2011, 3:07 PM

I'm not going to do a full oral argument summary of this morning's case before the D.C. Circuit, Al Zahrani v. Rodriguez, since it was not a habeas merits case. And the issue it raises, whether the families of detainees who died at Guantanamo can bring a Bivens actions in connection with the detention and alleged mistreatment of their relatives, has a rather clear answer--they can't--that was very much on display in today's argument. That said, the argument was entertaining--in somewhat the way that it's entertaining to watch three guys with baseball bats wacking a piñata, and it ended in somewhat dramatic fashion with Chief Judge David Sentelle literally walking out on counsel for the plaintiffs--with Senior Judges A. Raymond Randolph and Stephen Williams close behind. So if only for the amusement value, here's a mini-summary.

(I posted the briefs and lower court opinions here.)

Pardiss Kebriaei of the Center for Constitutional Rights is playing the role today of piñata. She begins the argument by declaring that this case is different from other detainee abuse cases considered by the D.C. Circuit because it doesn't involve official policy but serious breaches of it. She is not challenging earlier decisions, she says.

This is as far as Kebriaei ever gets in discussing the merits of her case.

Judge Sentelle breaks in at this point and asks her if the court has jurisdiction given the Military Commissions Act's jurisdicition-stripping provision--and the long downhill roll has begun. Kebriaei argues that there is jurisdiction because the Supreme Court struck down this provision in Boumediene, but none of the judges has the time of day for this argument. That was about habeas and the Suspension Clause, they take turns saying. Nothing about Boumediene struck down the more general prohibition against non-habeas litigation from Guantanamo.

But Boumediene's reasoning support a wider application, Kebriaei tries to argue. Nobody's buying. Judge Williams points out that a Bivens remedy is not available when special factors counsel against it, and one such special factor is when Congress has spoken to the question--as it has here "in the clearest possible way."

To the extent that this provision bars review of constitutional claims, Kebriaei contends, it is unconstitutional. But Judge Sentelle asks her how long the United States existed before the federal courts got federal question jurisdiction, and when she responds that this happened in the late 19th Century, he asks whether the courts were unconstitutional for their first 100 years of their existence.

Judge Randolph adds that this argument can get nowhere in the D.C. Circuit, since--while Kebriaei may disagree--her clients, as aliens abroad, have no constitutional rights under the law of the circuit. Kebriaei responds that such a formalistic approach was rejected in Boumediene. But this principle, Judge Randolph responds, was reiterated as the law of the circuit after Boumediene, in the Uighur case, Kiyemba. Kebriaei argues that it's wrong, but Judge Randolph points out that it's not for a panel to revisit at this point. This is a potential en banc question now. Kebriaei contends that this point was not a holding in Kiyemba. Judge Randolph says she's wrong.

It doesn't get better. Kebriaei makes no headway in arguments about the Alien Tort Statute or about  the CSRT proceedings the detainees were subjected to. And she ends her argument with a back-and-forth with Judge Randolph about whether letting a Bivens action come from Guantanamo would inevitably mean letting anyone captured anywhere in the world file one--an exchange in which she evidently does not persuade him that extending Bivens to Guantanamo will prove containable.

All is all, it's a bad day for Kebriaei--and though she doen't know it yet, it's going to get worse.

First, though, Robert Loeb--counsel for the government--has to take a walk in the park with the judges and have a pleasant conversation about how his brief might have been stronger.

Loeb begins by noting that all of Kebriaei's arguments are based on a false premise: that there's some constitutional right to file a damage action, the deprivation of which violates Article III. This is wrong, he says. Bivens itself acknowledged that there may be reasons not to allow certain claims--and congressional action was prominent among them. There are also immunities from suit.  Judge Williams asks whether the Supreme Court has retreated at all from this position, and Loeb says--to the contrary--it has moved the other way, as the circuit courts have recognized.

Judge Williams asks him why he didn't make a bigger deal of the jurisdicitional matter in his brief, and he says he thought it was prudent to address the arguments the lower court made in dismissing the case--though the government does believe that the jurisdictional issues are dispositive. Both are threshold issues, he notes. Judge Sentelle responds that the qualified immunity issues the lower court discussed is a little more than a threshold issue--a kind of peak at the merits.

There's a little more back and forth, but everyone in the room knows exactly what this opinion is going to say. And eventually, Judge Randolph stops pretending there is any need to discuss Loeb's argument with him further.

Do you know, he asks, what happened to Bivens? This is clearly not a question Loeb is expecting, so he just lets Judge Randolph talk. The case was Bivens against six unnamed federal agents, Judge Randolph says. It turned out there were really only five agents, and the case settled for $100 each--because there was nothing to it. But the discovery went on for years. Sullivan & Cromwell, which handled it pro bono, put in hundreds of thousands of dollars in attorney time. Then Judge Randolph catches himself: What, he asks, does that have to do with this case? He laughs, and Loeb--after assuring himself that there are no other questions--sits down.

Kebriaei gets up for rebuttal and takes another few minutes of battering. When Judge Sentelle has had enough, he informs her that they have kept her long past her allotted argument time. She says she has two quick points to make, perhaps having noticed that he allowed counsel in the case argued just before to make two quick points under similar circumstances. But this time, Judge Sentelle is not interested in hearing more, and he tells her so. She pushes; just two very brief things, she says. Judge Sentelle politely but firmly resists. The court goes over, he notes, when judges have more questions, but unless either of his colleagues have more, she's not going to get to make her additional points. Kebriaei pushes one more time.

"Close the court," Judge Sentelle says, and he stands up and walks out. The other two judges follow him. With Kebriaei still at the dais, the audience is instructed to "All Rise." And the session ends.

Two morals to this story: First, don't go into the D.C. Circuit without a good answer to the question, "Do we have jurisdiction." Second, when Judge Sentelle tells you to shut up, take that advice pretty seriously.