Alien Tort Statute

Former Guantanamo Detainee Petitions for Certiorari Seeking Redress for Alleged Torture

By Russell Spivak
Thursday, May 4, 2017, 11:34 AM

In late 2002, Afghan officials arrested Mohammed Jawad and transferred him to American officials. During his six-year stay at Guantanamo, Jawad alleges that he was tortured. Upon being released from federal custody and repatriated to Afghanistan, Jawad sued the government in 2014. Last year on Lawfare, Helen Klein Murillo described the D.C. District Court’s opinion dismissing the suit, including the underlying laws in question and the merits of his case, as well as Jawad’s appeal to the D.C. Circuit Court of Appeals. In August, the D.C. Circuit affirmed the District Court’s ruling. Below, I review the relevant background, outline the Court of Appeals’ decision, and summarize Jawad’s petition for certiorari to the Supreme Court.

 

Factual Background

On December 17, 2002, following a grenade attack that left two U.S. soldiers and their interpreter badly injured in a Kabul bazaar, Afghan officials arrested Mohammed Jawad. Afghan security forces allegedly tortured Jawad—who does not know his exact age but believes he was born circa 1987—coercing him to confess to the crime (using a signed statement in a language he could not read). Thereafter, the Afghans gave American forces custody of Jawad and a copy of his confession to American officials. After a brief stop at Forward Operating Base 195 outside Kabul, he was transferred to Guantanamo Bay Naval Base. Quoting from his initial complaint, the District Court discussed Jawad’s alleged treatment while at Guantanamo:

U.S. officials continued to interrogate plaintiff and “deprive[d] him of food, drink, and sleep.” Plaintiff was “strip-searched, and then photographed in the nude in front of several on-lookers.” “He was blindfolded and hooded, told that if he did not cooperate that he would never see his family again, and made to hold a water bottle which he was told was a bomb that could explode at any moment.” Several hours later, “he admitted responsibility for the attack.”

In 2004, a Combatant Status Review Tribunal determined that Jawad was properly detained as an enemy combatant. In 2005 and 2006, Administrative Review Boards concluded that there was sufficient reason to continue his detention. By 2009, given a lack of evidence supporting Jawad’s continued internment, the government determined Jawad’s further detention was no longer lawful and repatriated him.

 

Procedural History

Upon returning to his native Afghanistan, Jawad filed suit against several individuals in charge of the Guantanamo program in the D.C. District Court, asserting six claims: three violations under the Alien Tort Claims Act (ATCA) and the Federal Tort Claims Act (FTCA), a violation the Torture Victim Protection Act (TVPA), and the Fifth and Eighth Amendments. Judge Huvelle dismissed all six claims for lack of subject matter jurisdiction. As Lawfare previously described, the court’s opinion is “relatively dense, and includes complicated issues of tort law, agency law, and sovereign immunity,” but a brief summary of the analysis’ conclusions is nevertheless in order.

First, Judge Huvelle substituted the United States in place of any individual defendants, holding that, under D.C. Circuit precedent, the Westfall Act applied because the individual defendants—retired Maj. Gens. Miller, Hood, and Cannon as well as Mr. Esteban Rodriguez, per the New Yorker, a “civilian who [oversaw] the interrogation program at Guantánamo . . . as director of the Joint Intelligence Group”—were acting in the scope of their employment and no constitutional private right of action was asserted in the first 3 claims. But because the FTCA does not extend to Guantánamo Bay, these claims were dismissed. Next, the district court dismissed the TVPA claim because it does not extend to sanctioned actions. Finally, the constitutional claims were dismissed because, under Al Zahrani v. Rodriguez, “special factors counsel against the judiciary’s involvement in the treatment of detainees held at Guantanamo binds this Court and forecloses it from creating a Bivens remedy[.]”

 

D.C. Circuit Opinion

Jawad appealed to the D.C. Circuit, focusing primarily on factual distinctions between his case and the facts underlying the substantial precedent on which the district court relied. But the opinion went straight to the jurisdictional bar set out by Congress in §7(a) of the Military Commissions Act, codified at 22 U.S.C. §2241(e)(2)

[N]o court, justice, or judge shall have jurisdiction to hear or consider any [non-habeas] 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.

Because, Judge Thomas Griffith penned, “[b]y its clear terms, this provision strips federal courts of jurisdiction to hear most claims against the United States arising out of the detention of aliens like Jawad captured during the United States’ invasion of Afghanistan,” and because the CSRT satisfied §7(a), the court could not intervene.

Jawad’s arguments to the contrary were unpersuasive. First, Jawad claimed that his 2009 release and repatriation is evidence that his original detention was improper. Judge Griffith disagrees, stating “[the release] never said that Jawad was not properly detained, only that the United States would no longer treat him as such.” The distinction foreclosed Jawad’s argument: such a claim would have to be accompanied by a full revocation of the CSRT’s original determination, which did not occur.

Second, Jawad points to his age in two ways: (1) he claimed “his capture, torture, and detention[ ] violated domestic and international law concerning treatment of juveniles accused of a crime”; and (2) the “MCA lacks jurisdiction over minors.”

The court quickly dismissed the former claim because no legal provisions or precedent from either domestic or international directly apply, let alone support, this assertion. (The court notes Jawad’s sole reliance “on the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [Optional Protocol], which the United States ratified,” but states Jawad failed to connect his claims relate to this agreement.)

Judge Griffith similarly dismissed Jawad’s second age-based argument, which the Court interpreted to mean “that no provision of the MCA can apply to juveniles, leaving him free to bring his damages action.” For this claim, Jawad relied on United States v. Blanton, 23 C.M.R. 128 (C.M.A. 1957), which held that “enlistment of a person under the statutory age is void so as to preclude trial by court-martial for an offense committed by him while still under such age,” and on the Federal Juvenile Delinquency Act, which sets strict parameters for juvenile prosecutions and detentions. But because both bear only on military and federal prosecutions respectively, neither “bears on whether Congress . . . barred courts from hearing damages actions brought by juveniles determined to be properly detained as enemy combatants.” Rather, the court read “the plain language of section 7(a)” as applying the jurisdictional bar “where a detainee has been determined an ‘enemy combatant.’” Because the CSRT classified Jawad as an enemy combatant, his age was irrelevant. More, Judge Griffith supported this conclusion by demonstrating §7’s link to the AUMF’s detention authority, which permitted detention of all “enemy combatants,” rather than the MCA’s grant of jurisdiction to military commissions, which extends only to “unlawful enemy combatants.”

Finally, the Court noted and dismissed “several meritless constitutional claims” Jawad raises, included damages for “unconstitutional trespasses by the United States” as well as facial challenges to §7(a) as “inconsistent with the plain language of Article III of the Constitution” and violating the Bill of Attainder Clause, with long-standing precedent and textual support.

 

Petition for Certiorari

Late last year, Jawad petitioned the Supreme Court for certiorari. Abandoning his claims regarding the Westfall Act and individual liability, the thrust of the petition is twofold: the “Court should not permit the court of appeals’ decision to stand . . . relating to the government’s unlawful detention and torture of a juvenile,” and that, more broadly, “the important question of whether juveniles detained and charged at Guantanamo Bay are barred from filing a damages actions[sic] in federal court has not been, but should be, settled by [the] Court.” Jawad rehashes much of his arguments from his lower court appellate brief relating to the text of the MCA’s jurisdictional bar, the Optional Protocol, and the FJDA, though adds additional arguments as to why the Court ought to hear his case. I address each in turn.

First, Jawad again confronts the jurisdictional bar. He argues that “[t]he United States did not have jurisdiction to detain and charge [him],” which would prohibit invoking the §7 jurisdictional bar and allow the suit to continue. To support his claim, Jawad begins by citing Hamdan v. Rumsfeld for the proposition that military tribunals must comply with the entirety of the Uniform Code of Military Justice (UCMJ). Because, under Blanton, juveniles cannot be tried in courts martial, neither can they be tried in military commissions. This, Jawad asserts, “requires a finding that [the government] failed to comply with the UCMJ’s conditions on the use of military commissions concerning the detention . . . of juveniles.” Such a finding would thus invalidate the initial CSRT, undermining the MCA’s jurisdictional bar on courts to hear such cases.

The petition next argues that Jawad’s CSRT runs afoul of the Optional Protocol, which dictates obligations on the detention of juveniles. Article 6 of the Optional Protocol reads:

States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

Jawad argues that his detention—subject to the CSRT determination—“is contrary to the Optional Protocol’s provisions requiring rehabilitation and reintegration.” So, too, does “preclusion of any remedy.” He buttresses his argument by referencing the International Covenant on Civil and Political Rights and the UN Convention Against Torture, both of which “require the United States to provide remedies to those whom it tortures.”

The petition then turns to the Federal Juvenile Delinquency Act. The FJDA “provides specific procedures for the detention, prosecution, and sentencing of juveniles accused of a crime.” Notwithstanding, “no specific procedures [exist] for the detention, prosecution and sentencing of juveniles.” Therefore, Jawad posits, the Supreme “Court’s intervention is needed to provide a reasonable interpretation and guidelines for the government’s treatment and detention of juveniles.”

In light of the recently-decided Al Shimari v. Caci Premier Tech., Inc., Jawad poses a new argument: the D.C. Circuit Court erred in light of Al Shimari’s determination that “the justiciable doctrine does not bar torture claims.” In that case, the Fourth Circuit reversed a district court’s dismissal of a claim as non-justiciable because “district court erred in failing to draw a distinction between unlawful conduct and discretionary acts that were not unlawful when committed.” Jawad then links this reversal to his case’s justiciability and the MCA’s jurisdictional bar: “As the justiciability doctrine could not bar the plaintiffs’ torture claims in Al Shimari, MCA Section 7 should not bar Petitioner’s torture claims.” Because the alleged torture was performed on Jawad before his CSRT, the petition states, the Court should intervene to determine whether the government is barred from using the tainted CSRT in support of the jurisdictional bar.

Jawad’s final argument raises his earlier argument stemming from Boumediene v. Bush. In Boumediene, the petition notes, the “Court explained the high risk for error in determining the accused’s status in the CSRT process and . . . recognized the meaningful opportunity for a detainee to demonstrate he is being unlawfully held and argue that his CSRT determination was unlawful.” Given the spirit of the holding, Jawad reasserts his argument that because he was later released, he could not have been properly detained at the outset.

 

Government’s Brief in Opposition

Last month, the government filed its Brief in Opposition. The government’s brief claims that because Jawad “largely fails to respond to the D.C. Circuit’s reasons for rejecting his contentions” and because their textual argument, adopted by the Circuit Court, is correct, “[n]o further review is warranted.”

The main argument put forward is based in the text of §2241(e)(2): the provision, the government claims, “does not open [one’s] detention decision to after-the-fact review when a ‘court, justice, or judge’ determines whether it has jurisdiction over a subsequent non-habeas-corpus action.” The government asserts that this provision alone forecloses further review.

But, arguendo, the brief addresses each one of Jawad’s arguments that the CSRT determination should be overturned if improperly reviewed. The government counters Jawad’s assertion that military commissions don’t permit trying juveniles by reverting back to the Circuit Court’s opinion, stating that the claim “‘ha[s] no relevance here because [Jawad] is not being tried by any military court.’” The government also parries Jawad’s claims relating to the Optional Protocol by arguing that “nothing in the Protocol prevents the United States Armed Forces from detaining the juvenile and determining his status as an enemy combatant.”  Finally, the brief similarly dismisses Jawad’s FJDA assertion: “That Act provides a procedural alternative in federal district court to a normal criminal prosecution for juveniles who violate federal criminal prohibitions. . . . It has no relevant to the detention of alien enemy combatants apprehended abroad,” rendering it “immaterial” to the case at bar.

The government then turns to Jawad’s Al Shimari argument. The government argues that Al Shimari looked at a different question than the one in the current case: “the relevant question under Section 2241(e)(2) is not whether petitioner was properly detained, but whether he was 'determined by the United States to have been properly detained as an enemy combatant.'” The government asserts that because the CSRT did so, his argument cannot hold. Further, the government argues, the Al Shimari holding that the political question doctrine didn’t bear on the court’s ability to hear claims regarding torture and war crimes “has no legal relationship to the question of statutory construction at issue here.”

The government turns finally to Jawad’s claim that his release necessitates that his original determination was improper. Like the lower court, the government claims Jawad’s argument is incorrect based on the military determination that Jawad could no longer be held was based on the text of the notice, reading that what was left in the record “after other evidence was suppressed” was “‘no longer [sufficient to] treat [Jawad] as detainable.’” The government adds that the Attorney General’s ordering of further investigation into Jawad’s case “in light of the multiple eyewitness accounts that were not previously available for inclusion in the record—including videotaped interviews” bolster the conclusion that the later determination that Jawad was no longer legally detainable does not bear on the accuracy of the initial CSRT in question.

Jawad has filed his reply brief, though it hasn’t yet been released.