Mohammed Jawad was arrested in Kabul in December 2002 by Afghan security forces responding to the scene of a grenade attack on US military personnel. See Jawad v. Gates, No. 14-00811 (D.D.C. July 8, 2015) (D.D.C. Opinion). He was 14 or 15 at the time; Jawad doesn’t know his exact age but believes he was born in 1987. Afghan security forces abused, threatened, and coerced Jawad, “forcing him to sign a confession (written in a language that he could not read) with his thumbprint.” D.D.C. Opinion at 2. He was subsequently transferred to U.S. custody. Judge Huvelle described his immediate treatment, quoting from the Complaint:
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.”
Jawad was held at Bagram before being transferred in 2003 to Guantánamo Bay. In 2004, a Combatant Status Review Tribunal (CSRT) deemed Jawad an enemy combatant, and in 2007 he was charged with murder under the Military Commissions Act (MCA). Jawad’s defense counsel filed a motion to suppress his confessions as products of torture—motions which were granted by the trial judge and affirmed by the Court of Military Commission Review (CMCR). The CMCR acknowledged that Jawad had continued to be tortured at Guantánamo, despite being deemed early on to be of no intelligence value. In particular, he was subjected to the so-called “frequent flier program”—a sleep deprivation regime that included moving prisoners from cell to cell every few hours to disorient and interrupt sleep—a regime that, for Jawad at least, “had no legitimate interrogation purpose,” according to the CMCR. D.D.C. Opinion at 4. Eventually, in 2009, due to the lack of evidence given the suppressed statements, the government dropped its opposition to Jawad’s habeas corpus petition and determined that Jawad was no longer legally detainable. He was repatriated six days later.
Jawad brought suit in 2014 in D.C. district court under the Alien Tort Statute (28 § U.S.C. 1350), Federal Tort Claims Act (28 U.S.C. §§ 2671-2680), and Torture Victim Protection Act (28 U.S.C. § 1350) seeking damages for his detainment and treatment in U.S. custody. The district court, in a memorandum opinion by Judge Huvelle, dismissed all of Jawad’s claims in July 2015. Jawad now appeals to the D.C. Circuit. Oral argument is scheduled for April 5, 2016. Below I outline the district court order and Jawad’s appellate brief. Jawad’s Reply Brief is set for release on Wednesday, February 24.
The Alien Tort Statute
The Alien Tort Statute gives U.S. district courts original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS was part of the Judiciary Act of 1789, the law of recent fame at the center of the Apple vs. FBI showdown. In recent years, the ATS has been used to bring claims against CIA contractors for alleged torture in overseas detention facilities, claims by a Somali national against a former Colonel of the Somali National Army for torture and war crimes, and claims by a group of Colombians against a corporation for its support of paramilitary forces in Colombia, among others. And Jawad isn’t the first former Guantánamo detainee to bring an ATS claim.
Jawad brings six causes of actions under the ATS and related statutes—the Federal Tort Claims Act (FTCA), and Torture Victim Protection Act (TVPA). Claims 1-3 are brought under the ATS and FTCA: (1) abusive treatment in violation of customary international law and multilateral treaties; (2) torture and inhumane treatment in violation of the Third and Fourth Geneva Conventions; and (3) treatment in violation of Articles 6 and 7 of the Optional Protocol on the Involvement of Child Soldiers in Armed Conflict. Claim 4 alleges unlawful torture in violation of the Torture Victims Protection Act. Claim 5 and 6 allege Bivens liability for violations of the Fifth and Eighth Amendments.
The District Court Opinion
Judge Huvelle of the United States District Court for the District of Columbia dismissed each of Jawad’s claims for lack of subject matter jurisdiction. She reasoned that Supreme Court and D.C. Circuit precedent clearly barred all of Jawad’s claims. Because the analysis is relatively dense, and includes complicated issues of tort law, agency law, and sovereign immunity, what follows is a brief summary of the steps of analysis.
First, Judge Huvelle addressed Westfall immunity. Jawad sues not only the United States, but also individual government officials and military personnel. This is critical because sovereign immunity is not a defense for individual government actors. However, the Westfall Act mandates that the United States be substituted as defendant for claims against government employees acting within the scope of their employment. Jawad alleges that torture falls outside the scope of employment for Westfall immunity. He also claims that defendant officials “flagrant[ly] misbehav[ed]” by continuing the “frequent flier program” after commanding officers had ordered the program halted. Finally, Jawad argues that because the torture was not for an interrogative purpose, given that he was deemed to be of no intelligence value, it falls outside scope of employment. Judge Huvelle found precedent binding: “[t]he majority of plaintiff’s arguments were considered and flatly rejected by the D.C. Circuit in Allaithi v. Rumsfeld,” the other former Guantánamo detainee abuse ATS case mentioned above. D.D.C. Opinion at 8.
Judge Huvelle found that: (1) the individual defendants were acting within the scope of their employment, (2) the plaintiff failed to assert constitutional or other statutory violations that authorize a private right of action against an individual, so (3) the court must substitute the United States as defendant in claims 1-3. Next, Judge Huvelle found that although the FTCA is “a limited waiver of sovereign immunity,” that waiver expressly excludes claims arising from extraterritorial conduct. Citing Al Janko and Al-Zahrani, Judge Huvelle determined that precedent is clear that Guantánamo Bay is in a foreign country for purposes of the FTCA waiver. The first three claims were thus dismissed for lack of subject matter jurisdiction.
Next, Judge Huvelle tackled the TVPA claim, noting first that TVPA liability is statutorily limited to action “under actual or apparent authority, or color of law, of any foreign nation.” 10 U.S.C. § 1350. Jawad argues that this limitation is unconstitutional and in violation of U.S. anti-torture laws. Judge Huvelle disagreed: “Although plaintiff styles his argument as an objection to the constitutionality of the TVPA, he is in effect requesting that this Court rewrite that law to imply a new cause of action against U.S. officials.” D.D.C. Opinion at 14. The fourth claim was thus dismissed. Similarly, on Jawad’s Bivens claim, the Judge found precedent unyielding: in at least three major cases, including Al-Zahrani, “the Circuit has reaffirmed its refusal to create a Bivens remedy in at least two cases that are indistinguishable from this one.” D.D.C. Opinion at 15. Thus, the fifth and sixth claims were out.
Finally, Judge Huvelle addressed the government’s contention that the MCA strips the court of jurisdiction to hear Jawad’s non-habeas claims regarding his confinement. 28 U.S.C. § 2241(e)(2). Jawad argues that the MCA provisions do not apply to him because he was not determined to be an enemy combatant and, even if he was considered to be at one time, he was later confirmed not to be enemy combatant in the decision that he was no longer legally detainable. Judge Huvelle rejected both arguments, citing the CSRT’s determination that he was an enemy combatant, and noting that “nothing in the record indicates that the United States determined that [Jawad] was, in fact, not an enemy combatant” when it found him to be no longer detainable. Further, the court noted that the D.C. Circuit holding in Al Janko was “dispositive”: “[t]he MCA jurisdictional bar therefore applies, regardless of any subsequent admissions of error by the government.” D.D.C. Opinion at 18. Finally, Judge Huvelle rejected Jawad’s arguments that (1) because his initial detention was a violation of the Child Soldier Protocol, § 2241(e)(2) should not apply, and (2) that § 2241(e)(2) is a constitutional violation of Article III. The court relied on the D.C. district court opinion in Khadr v. Bush, which it said applied the MCA’s jurisdictional bar to a base transfer request pursuant to the Child Soldier Protocol.
The opinion ends on a note of sympathy for Jawad: “While this Court shares plaintiff’s condemnation of the treatment and the conditions that he was subjected to in Guantanamo and agrees that such conduct is contrary ‘to fundamental American values of justice,’ it is simply not correct to argue that it is within this Court’s power to create a remedy for what happened here.”
Jawad’s D.C. Circuit Brief
Jawad’s brief to the D.C. Circuit unsurprisingly focuses on why “the facts supporting Plaintiff’s claims against Defendants are distinguishable from D.C. Circuit Court precedent and present several issues of first impression.” The brief casts the “clearly established precedent” relied on by Judge Huvelle as not so clear given the factual particulars of Jawad’s case.
First, the brief attacks the MCA jurisdictional bar, arguing that Jawad’s juvenile status at the time of his capture makes the MCA inapplicable to him under both international law, including the Child Soldier Protocol, and U.S. domestic law.
Jawad argues that Judge Huvelle’s reliance on Khadr as precedent was inappropriate: “The Khadr Court declined to consider the substance of Khadr’s claims challenging the legality of his detention due to his juvenile status because it was precluded by the Councilman doctrine, not because it was precluded by [the] MCA.” Pet. Brief at 14. (This is a good example of why the Councilman abstention question in the recently argued Nashiri petition is potentially so critical.) The brief further notes that, “[b]ecause the MCA is silent on any provisions for a juvenile’s rehabilitation, reintegration, or the treatment of child soldiers, the MCA violates the Child Soldier Protocol and is therefore invalid to the extent it authorizes the government to detain and prosecute minors.” Pet. Brief at 16. According to the brief, under Hamdan, the government is required to abide by not only U.S. law but also the Geneva Conventions in its use of military commissions.
Furthermore, the brief contends, even the plain language of the MCA makes it inapplicable to Jawad because, after Hamdan in 2006, the statute requires a determination of “unlawful enemy combatant,” a status that was never established because of insufficient evidence. As the brief points out, the government never alleged that Jawad was a member of al-Qaeda, the Taliban, or associated forced. In fact, he was the only detainee at Guantánamo whose charges did not include terrorism or material support for terrorism. As such, Jawad argues that he did not meet the AUMF’s definition for enemy-combatant status, so the reliance by the district court on Janko was similarly misplaced. Finally, Jawad argues that Boumediene must be read to allow a detainee to show that his CSRT determination was unlawful, so to be bound by such an initial determination would be inconsistent with that precedent.
Jawad’s argument on appeal regarding individual defendants’ liability and the inapplicability of the Westfall Act largely focuses on the idea that what is required in the initial pleading is simply enough evidence to rebut the Attorney General’s certification that the defendants were acting within the scope of their employment. Jawad argues that he deserves at least a hearing on the issue.
And as for sovereign immunity under the FTCA, Jawad acknowledges that “this Court has held Guantanamo Bay is a foreign country under the FTCA,” but “respectfully requests the Court reconsider this decision in light of the facts of this case and the evolution of human rights law.” Pet. Brief at 50.
While it seems unlikely that the court will change course so drastically and allow a civil remedy here, the case raises familiar but no-less-compelling questions about the status of Guantánamo, the interplay of domestic and international law, and the obligations of the U.S. government to former detainees. And it does so on a set of perhaps unusually sympathetic facts.