Alien Tort Statute

Oral Argument Preview: Al Janko v. Gates

By Raffaela Wakeman
Monday, October 21, 2013, 10:10 PM

Tuesday morning, a three-judge panel of the D.C. Circuit will hear oral arguments in Al Janko v. Gates, an appeal of a damages action brought by a former Guantanamo detainee against various government officials for their alleged mistreatment of him while he was detained in Afghanistan and at Guantanamo. U.S. District Court Judge Richard Leon granted the government's motions to dismiss the damages suit in December 2011.

While still detained at Guantanamo, the plaintiff, Abdul Rahim Abdul Razak Al Janko, petitioned for a writ of habeas corpus and was ordered released by Judge Leon in July 2009; the government released him later the same year. In 2010, Al Janko filed a complaint seeking damages against 26 individual defendants, 100 other unnamed persons, and the United States, alleging that he was subjected to abusive treatment during his detention in Afghanistan and Guantanamo.

Al Janko's claims include constitutional, Alien Tort Statute (ATS), and Federal Tort Claims Act (FTCA) violations, and an allegation of conspiracy to interfere with his civil rights under 42 U.S.C. 1985. His alleged mistreatment runs the gamut, including "abusive interrogation techniques," sleep deprivation, being urinated on, being shackled, being force-fed, and being subjected to solitary confinement, among other things. All of this, he says, led him to attempt suicide seventeen times while in U.S. custody.

In the district court below, the government filed a motion to dismiss for lack of subject matter jurisdiction. A provision of the Military Commissions Act, Section 2241(e)(2), strips jurisdiction from the federal courts for damages claims by former Guantanamo detainees. Since Al Janko's case was before two Combatant Status Review Tribunals, the statutory requirements of §2241(e)(2) were satisfied, the court rules. Nor, Judge Leon wrote, did the district court's grant of habeas corpus to Al Janko serve as a work-around that gets Al Janko past the jurisdiction bar. Judge Leon dismissed the claims under the FTCA, based on the foreign country exception, as the actions alleged took place out of the United States, in Afghanistan and in Cuba. With respect to the claims under the ATS, because the government didn't waive sovereign immunity, Judge Leon concluded that Al Janko did not have a cause of action. 

The Military Commissions Act §2241(e)(2)

Al Janko argues that he is not precluded from recovery by the MCA, as the district court, in judging his habeas petition, found his detention unlawful. Al Janko takes issue with the government's argument that the CSRT determination is sufficient to trigger the application of the statute to his claims. He interprets the MCA to imply that a court's determination that a detainee is unlawfully detained should end-run the jurisdictional bar. (Judge Leon's determination that Al Janko was unlawfully detained appears throughout the plaintiff's briefs.)

Should this argument fail, the former detainee says the MCA's jurisdiction-stripping provision is unconstitutional as applied to him: in §2241(e)(2), the relevant language here says that enemy combatant status is "determined by the United States." Al Janko concludes that under the government's line of reasoning, the federal courts would be "written out" of the "United States" referred to in the statute. He reaches further regarding the relative weight of the district court's finding in his habeas case versus the CSRT's determinations: he argues that the habeas ruling renders the CSRT determinations "ineffective."

The government contends, however, that it is the CSRT's determination, on two occasions, that Al Janko was indeed an enemy combatant, that implicates the §2241(e)(2) bar on jurisdiction. Indeed, "United States" in the statute means the Executive Branch, says the government, and it walks through statements by members of Congress in the legislative history of the provision that say that it understands the provision to say that the executive branch makes the enemy combatant status. Al Janko's argument in the alternative, that §2241(e)(2) is unconstitutional, is "meritless," argues the government, pointing to Al Zahrani and Kiyemba II for support.


Al Janko rejects the district court's conclusion that the defendants should be entitled to qualified immunity, and considers his situation unique from that presented in Rasul II and Ali: he was, after all, already released when he brought his claims, unlike the plaintiffs in the earlier cases. Because the district court had already concluded that Al Janko was not lawfully detained (the claim that he was, according to the district court, "defied common sense"), special factors don't preclude considering his claims.

The government argues that two independent routes lead to the dismissal of the constitutional claims. First, the individual defendants are entitled to qualified immunity because aliens held at Guantanamo at the time of Al Janko's detention (pre-2009) did not have clearly established Fourth and Fifth Amendment rights. (The government says that Boumediene's holding applies only to the privilege of habeas corpus.) The second argument is that special factors bar damages actions in the military-detention context.

Alien Tort Statute Claims

As to the ATS claims, Al Janko says that because the acts were "clearly illegal," didn't serve the interests of the United States, and were conducted outside of the scope of the individual defendants' employment, the Westfall Act does not apply and the United States shouldn't be substituted for the individual defendants here. He points to alleged continued mistreatment even after the district court granted his habeas writ, and works through the four factors articulated in the Restatement of Agency to determine whether the conduct falls under the scope of employment.

The government takes issue with Al Janko's application of the Restatement to the defendants' actions, and argues that their actions fell within the scope of their employment.


Al Janko also disputes the district court's determination that Guantanamo meets the "foreign country exception" of the FTCA, arguing that Cuba has "virtually no sovereignty" over the detention facility. (He leaves unaddressed the argument as to Afghanistan.) He finds this conclusion inconsistent with Boumediene. He looks to the terms of the lease agreement and the absence of a Status of Forces Agreement to point out the base's unique circumstances in comparison to other U.S. military installations. Add to that the Supreme Court's finding in Boumediene that GTMO is within the "constant jurisdiction" of the U.S., its statement in Rasul that Guantanamo is "in every practical respect a United States territory," and the Cuban court's lack of jurisdiction in the military base, and Al Janko concludes that it cannot fall within the "foreign country exception" of the FCTA.

The government relies, as it did in the court below (and as the district court did), on the 1949 case of United States v. Spelar to support its conclusion that Afghanistan and Guantanamo, Cuba are foreign countries. In that case, the Supreme Court found that a U.S. air base leased by Great Britain was a "foreign country." Subsequent cases have used de jure sovereignty as the touchstone for determining the meaning of "foreign country." As Guantanamo, Bay is "not formally part" of the United States, it qualifies as a "foreign country" for the purposes of the FCTA, says the government.

* * *

Last week, the government filed a FRAP 28(j) letter, advising the court of additional authorities---specifically, the Ninth Circuit's decision last week in Hamad v. Gates. There, the court found that it lacked subject-matter jurisdiction, as a result of the same provision---§2241(e)(2)---as the one at issue here. Not so fast, says the plaintiff: there the district court found the former detainee to be an enemy combatant, while here the district court found him unlawfully detained.

Each side will have ten minutes allocated for its oral arguments, before Circuit Judges Karen LeCraft Henderson, Judith Rogers and David Tatel.