Today D.C. Circuit Judges David Tatel, Janice Rogers Brown, and A. Raymond Randolph will hear oral arguments in Al Laithi v. Rumsfeld. Six former Guantanamo detainees will be arguing that Chief Judge Lamberth erred in dismissing their claims, brought under the Alien Tort Statute (ATS), Bivens, the Religious Freedom Restoration Act and the Federal Civil Rights Act.
Here we could get into a point-by-point exploration of whether, as detainees assert, the government defendants fail three of the four prongs of the scope-of-employment inquiry, conferring to the courts jurisdiction over detainees' international-law claims. But an oral argument that turns on any of these prongs will be boring indeed. The more interesting keystone in all this is a variation on a classic administrative law question: whether and to what extent CSRT outcomes shape and constrain executive authority.
Chief Judge Lamberth rejected the detainees' attempt to make much of the CSRTs: "Nothing in Rasul I’s holding that detainee-abuse was within defendants’ scope of employment indicated that this determination rested upon the outcome of any administrative procedure." Meanwhile, the government brief on appeal focuses on denying the relevance of the issue: "Plaintiffs attempt to distinguish [Ali and Rasul I] by arguing that once the CSRTs determined that three of the plaintiffs were no longer “enemy combatants,” the government lacked the authority to detain those individuals, and thus the defendants’ actions were outside the scope of their employment. But the question whether the government had the authority to continue to detain plaintiffs while seeking their transfer to a suitable country is not the proper focus of the Westfall Act [scope-of-employment] analysis."