Detention: Law of: District Court Development

Civil Suit By Ex-Gitmo Detainee Dismissed

By Sonia McNeil
Saturday, December 24, 2011, 5:58 PM

On Thursday, Judge Richard Leon of the U.S. District Court in D.C. issued a little-noticed decision granting dismissal in Al Janko v. Gates. The case is noteworthy, however, because Al Janko–unlike other former detainees who have filed civil suits–“is the first detainee who was released pursuant to a successful habeas petition to seek damages for acts he says occurred while in U.S. custody.” Al Janko’s now-dismissed suit asserted constitutional, statutory, and state tort law claims arising out of alleged mistreatment during his detention at Guantanamo against the United States, 20 civilian and military officials, and 100 John and Jane Does.

First, a bit of background. Al Janko was discovered at the abandoned Sarpusa prison in Kandahar by U.S. forces in 2002. At the time, the U.S. believed Al Janko to be “one of a number of suicide martyrs” based on Al Qaeda-made videotapes seized from a terrorist safe house. In fact, Al Qaeda had tortured Al Janko “so severely” that he “gave a false confession that he was, indeed, a U.S. spy” and he was jailed by the Taliban at Sarpusa as a result. Unaware that the video “was actually an Al Qaeda torture tape,” the U.S. sent Al Janko to Guantanamo. His status as an enemy combatant was reviewed and affirmed by a CSRT panel in 2004 and again in 2008.

In June 2009, Judge Leon granted Al Janko’s petition for a writ of habeas corpus on the grounds that the Syrian national’s “limited and brief” involvement with Al Qaeda and the Taliban was “sufficiently vitiated” by his subsequent “imprisonment and mistreatment . . . such that he was no longer ‘part of’ al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002.” Al Janko was released in October 2009. Shortly thereafter, he sued for physical and emotional injuries claimed to be the result of “abusive interrogation techniques” used at Guantanamo.

In Thursday’s order, however, the same Judge Leon who had granted Al Janko's habeas petition found that the court lacked jurisdiction to hear the civil case. Al Janko, the judge said, had been “determined by the United States to have been properly detained as an enemy combatant” within the meaning of the jurisdiction-stripping provision of § 7 of the Military Commissions Act. “The term ‘United States’ in § 2241(e)(2) refers to the Executive Branch, not the Judicial Branch,” Judge Leon stated, "[t]hus, the determinations of the two separate CSRTs . . . more than satisfy the statutory requirements.” The court's grant of habeas relief, the judge continued, “neither eliminates the MCA’s jurisdictional bar to plaintiff’s detention-related claims, nor confers jurisdiction over his non-habeas claims.” Even were the MCA not a jurisdictional bar, he added, the United States had not waived sovereign immunity with respect to Al Janko’s ATS claims and the FTCA’s foreign-country exception barred claims arising in Afghanistan and Guantanamo.

“War, by its very nature, victimizes many of those caught in its wake,” Judge Leon concluded. Nonetheless, he said, the court could not “circumvent such a clear directive from our Legislative Branch” without “utter disregard of the limitations of our judicial power.”