Oral argument in this Guantanamo-related case has been set before Circuit Judges Henderson, Rogers and Tatel for October 22nd.
By way of background, Al Janko filed a damages action against government officials in their individual capacities, which District Court Judge Judge Richard Leon dismissed for lack of jurisdiction, qualified immunity, and on other grounds in 2011. Al Janko noted an appeal, and then filed his initial brief; the government's response followed, as did Al-Janko's reply.
The latter, filed in April, begins thusly:
Defendants' arguments do not sustain their position that Plaintiff is without any legal remedy for the torture and unlawful detention he suffered. First, Plaintiff does not fall within the statutory language of the Military Commissions Act ("MCA"). In this case, the habeas court found that Plaintiffs initial detention was unlawful and improper. The plain language of the statute demonstrates that Congress did not intend that even a patently erroneous initial decision to detain someone would strip jurisdiction over such claims. The MCA does not apply to the unusual circumstances of Plaintiff s claims.
Second, the foreign country exception does not apply to Plaintiff s Foreign Tort Claims Act ("FTCA") claims. The military base at Guantanamo is not a foreign country under the FTCA.
Third, Plaintiff s Alien Tort Statute ("A TS") claims arise out of conduct outside the scope of employment of any government officials, so no substitution should be permitted under the Westfall Act. If these claims are converted into FTCA claims, they do arise under the law of the place, as the law of the District of Columbia applies at Guantanamo and incorporates customary intemational law.
Finally, Plaintiff should be permitted to proceed with his Bivens claims against the individual defendants. Defendants were plainly on notice that their outrageous behavior violated the Constitution. There is no reason not to enforce the most fundamental Constitutional guarantees here.
The district court's decision should be reversed.