Guantanamo: Litigation: D.C. Circuit

Brief for the United States in Al-Janko

By Wells Bennett
Monday, March 4, 2013, 10:19 AM

The United States has filed its appellate brief in the case of Al-Janko v. Gates et al., a damages action brought by a former Guantanamo detainee against former government officers in their individual capacities.  (You can find more background here.)  The district court, in the person of Judge Richard Leon, had granted Al-Janko's petition for a writ of habeas corpus.  Yet Judge Leon also dismissed Al-Janko's subsequent constitutional and statutory claims for damages, on jurisdictional, qualified immunity, and other grounds.  The plaintiff then appealed.

From the brief's "Summary of the Argument:"

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 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.

II. The district court’s dismissal of plaintiff’s constitutional claims asserted against the individual defendants may be affirmed on two independent grounds.

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.

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.

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.”