The fate of the case, Al Janko v. Gates, before the D.C. Circuit today appears to hinge on a Clintonesque question: It depends what the meaning of "United States" is.
That is, it depends what the meaning of the term is in the jurisdiction-stripping provision of the Military Commissions Act, §2241(e)(2), which reads: "no court, justice, or judge shall have jurisdiction to hear or consider any other 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."
This is the issue that consumes D.C. Circuit Judges Karen LeCraft Henderson, Judith Rogers, and David Tatel throughout the argument, which I previewed yesterday and audio for which is available here.
Another phrase in the provision also catches their attention: "properly detained." But the other matters addressed in the briefing---the constitutional, ATS, and FCTA-related questions---come up only briefly in the thirty minute argument.
I'm not going to review the facts here in any depth, but here's the shortest of overviews: The plaintiff, Abdul Rahim Abdul Razak Al Janko, formerly detained by the United States in Afghanistan and at Guantanamo Bay, was determined in two Combatant Status Review Tribunals (CSRTs) to be properly detained but was then in 2009 granted a writ of habeas corpus by the federal district court below and released from Guantanamo later that year. He brought a damages action against various government officials for their alleged mistreatment of him while he was detained. That damages action was dismissed by the same judge, Richard Leon, as granted his habeas writ; Judge Leon dismissed the case on grounds that the MCA bars jurisdiction in §2241(e)(2).
Judge Henderson opens by acknowledging the cross-country journey by the plaintiff's attorney, Paul Hoffman, who came from Venice, California, to argue before the court today. Hoffman begins with the uniqueness of his client's case: specifically, Judge Leon's determination in Al Janko's habeas case (which the government never appealed), that he has always been and always was detained improperly.
Hoffman describes the government's interpretation of "United States" in the provision: in this context, the government reads it as referring only to the Executive Branch. Here, however, Hoffman continues, a district court judge also made a "determination" as to the legality of Al Janko's detention. Judge Tatel asks him what he makes of the fact that Congress used "United States" three times in the provision, but "court" only once---wouldn't it have written that line to say "courts" explicitly, if members had intended that court judgments count as determinations by the United States? Hoffman argues that the normal use of the term "United States" includes all three branches of government; in the context in which this provision was adopted, Congress chose to leave open the possibility that a court could make the relevant determination on behalf of the United States. Here that's exactly what happened.
Judge Tatel inquires after the legislative history, and previous iterations of the provision: in those versions, courts were explicitly mentioned, yet the current MCA uses "United States" in place of reference to the courts. Hoffman views the significance of the legislative history as suggesting that (e)(2) relates to the properness of a determination, not which branch makes it. Under the government's interpretation, Hoffman points out, any member of the Executive Branch could make the determination: a soldier in Kandahar, for example.
If the court buys this reading of (e)(2), Hoffman transitions, then his Alien Tort Statute and Bivens claims aren't barred by this Circuit's prior decisions. He would need additional discovery to determine whether the actions alleged in Al Janko's complaint fall within the "scope of employment" of the government defendants. For example, does urinating on the detainee fall within the "scope of employment"? Hoffman distinguishes Rasul from his client's situation: the actions at issue in Rasul took place in the beginning stages of an interrogation, while the treatment to which Al Janko was subjected, he alleges, took place over seven years, and continued even after Judge Leon granted Al Janko's habeas corpus writ.
After a brief discussion of Bivens arguments by Hoffman, Judge Tatel returns to the statutory interpretation question: the other two references to "United States" in the statute clearly refer to the executive branch, so the normal rules of statutory interpretation would suggest that the phrase in the key sentence also means just the Executive Branch. If Congress had intended to do that, Hoffman explains, it would have said explicitly that the Executive Branch was the one making the proper determination. The same word can mean different things in a single statute, he argues, and since courts do make determinations as the propriety of detention in habeas, the court's determination that the detainee was not properly held should overcome the CSRT's determination that he was---thus giving the district court in the subsequent suit subject matter jurisdiction over Al Janko's claims.
Hoffman's now run over his time limit and sits down.
Sydney Foster rises for the government: the court has numerous grounds on which to affirm the district court's decision below, she argues. Determinations by CSRTs that an individual is an enemy combatant are determinations of the United States, thus activating the MCA's statutory bar against claims like Al Janko's.
Having given Hoffman a hard time on this point, Judge Tatel now quickly jumps in quickly to remind Foster that the word "proper" is key to the provision too: in this case, Judge Leon's habeas decision found that he was not properly detained. Foster repeats: it is the CSRT's determinations that trigger the jurisdiction bar; a habeas grant isn't relevant. Judge Tatel interjects again: what's the relevance of "proper" here, then? If the CSRT had found he wasn't properly detained, it would have ruled as such, correct? Foster agrees. Judge Tatel tries to work through what he evidently regards as a circular argument. Foster concedes that the government wouldn't rely on the CSRT's determination if it ruled for a detainee; presented with that situation, the government would look for a prior tribunal's finding of enemy combatant status. Under the plain terms of the statute, any determination by the Executive Branch satisfies the requirement, she says.
Let's go back to the original decision to detain, suggests Judge Tatel: would that decision qualify under the statute? Although it's not presented in this case, Foster admits that the government isn't going so far as to say that an individual soldier's decision to pick someone up would satisfy the statute's requirement; the decision would need to be backed by a legal determination at some point.
Judge Rogers joins the discussion at this point: What does the government think of the observation that CSRT's are error-prone? And further, why would Congress choose to set up a system in which a federal district court judge's determination gets ignored? After an initial dive into Boumediene, Foster suggests that courts should generally strive to interpret the same word in one statute in one way. Under that line of reasoning, replies Judge Rogers, we would be required to interpret "United States" as meaning more than solely the executive branch. Foster disagrees: the other two references in (e)(2) are key here, she argues: one refers to the detaining authority (clearly meaning the executive branch), and the other refers to actions against government officials and their agents (again, certainly referring to the executive branch). Add to that the legislative history, which Judge Tatel walked through with the plaintiff's attorney, and one must conclude that the "United States" equals Executive Branch, for purposes of (e)(2).
Judge Rogers brings up the uniqueness of Judge Leon's opinion in Al Janko's habeas petition. Judge Leon didn't say Al Janko "is no longer properly detained;" he said Al Janko was "never" properly detained. That language is broad, broader than any language Judge Rogers has seen in habeas opinions past. To that, Foster says Judge Leon did not review the CSRT's determinations, he simply concluded, as all district court judges do in Guantanamo habeas petitions, that based on the information presented to him at the time of his ruling in 2009, that Al Janko was not properly detained.
A final question from Judge Tatel, to which Foster invokes the government's now-familiar refrain: the determination in question is the CSRT's that he was lawfully detained, so the courts would still have no jurisdiction. Judge Tatel comments, "You are consistent." (Cue courtroom giggles.)
Foster has one last thing to discuss: Al Janko's exhaustion arguments, and she wraps up, urging the three judges to affirm the district court's finding.
Paul Hoffman is allowed a few minutes to reply: there's nothing in the MCA that says that it is the CSRT's determination that triggers the jurisdictional bar, he argues. So anyone in the Executive Branch could trigger this bar under the government's theory. The language Congress used is broader; it includes the other branches; Congress could have been contemplating a role for the federal courts in the long term. Here Judge Tatel reminds Hoffman of the government's interpretation: It's the United States's (read: the Executive Branch's) determination that counts. One last reminder by the plaintiff's attorney: our client should never have been detained---neither in Afghanistan, nor in Cuba. Does the MCA wipe out any claim for possible relief of any sort for my client? Congress couldn't have had my client in mind when enacting the statute.