The courtroom is nearly full at the DC Circuit Court of Appeals for oral arguments in Al Laithi v. Rumsfeld. It is full mostly with a large number of students---apparently both college and law-school-age students---who fill the four back-most rows. Al Laithi is a bit of a weird case for students to use as an entry point into the Guantanamo discussion: It doesn't test the lawfulness of anyone's detention or anything like that, after all. It asks, rather, about the limits of officials’ immunity for conduct at Guantanamo claimed to be within the scope of their office or employment when that conduct includes the continued detention of folks cleared by review panels and set for release. Yesterday, Jane gave us a preview of the case. Audio of the oral argument is available here.
Russell Cohen rises for the detainees to address Judges David Tatel, Janice Rogers Brown and A. Raymond Randolph. He begins speaking even before being greeted by Judge Tatel, who smiles at his over-eagerness and and interrupts him to wish him a “good morning” before allowing him to launch into his arguments.
Cohen begins with his strongest, most striking argument: the central distinction between the claims of three of his clients and those that were dismissed in Rasul. Distinguishing the present case from Rasul is crucial for the detainees because they are asking the D.C. Circuit to overturn a district court opinion that found their claims “legally indistinguishable from those rejected by the D.C. Circuit in Rasul v. Myers.” But unlike in Rasul, Cohen argues, three of his clients were subjected to prolonged detention, wrongful abuse, and violations of their religious freedoms even after they were no longer understood to be enemy combatants. The key distinction between Cohen’s clients and the plaintiffs in Rasul is that Cohen’s clients were affirmatively determined not to be enemy combatants by their Combatant Status Review Tribunals, he argues. After the CRST determination, government officials’ scope of employment changed dramatically. From that moment on, their professional responsibility with regard to these non-combatant detainees was solely to arrange their transfer. Thus, in contrast to Rasul, much of the abusive conduct at issue in this case cannot be understood to have occurred within the scope of the defendants' employment.
The judges permit Cohen to speak uninterrupted for a number minutes before Judge Randolph finally cuts in. Weren’t the Rasul defendants eventually released? And didn’t the case take place before the existence of the CSRT? Did those detainees ever claim not to be enemy combatants? Cohen answers that he does not know precisely what the Rasul detainees claimed regarding their status as enemy combatants.
Cohen and Randolph then engage in a quick back and forth clarifying the timeline. Cohen explains that the CSRT hearings occurred in late 2004 and that the tribunal's decisions were rendered in 2005, but that the release of his clients did not occur for many months after that---late in 2005 and even in 2006. During that time, Cohen insists, it was certainly “plausible” that the defendants were acting outside the scope their employment in continuing to detain and abuse and infringe the religious freedom of his clients.
Judge Brown asks: Don’t you have to allege the defendants were acting “on their own” in order to get around the assumption of immunity? No, responds Cohen. Simply by continuing to treat the detainees as enemy combatants, government officials were acting in a manner at odds with their jobs. Judge Randolph verifies that the detainees were moved to a separate camp following their CSRT determinations, and Cohen concedes the point but argues that it advances his own. It shows, he says, that Guantanamo officials acknowledged the detainees' altered status post-CSRT. By moving the cleared detainees to an alternative camp, they demonstrated knowledge and understanding of the shift and that these detainees were supposed to be treated differently.
Judge Randolph steps back in. He reads a section of the detainees’ complaint alleging abuse based on the tying of their wrists, body searches, and their being forced to wear black goggles. Was this the extent of the allegedly unreasonable treatment, he asks, in a tone that seems to imply that he doesn't believe it was that bad. Cohen responds that the reasonableness of the treatment is a factual matter question that cannot be determined on a motion to dismiss. The allegations have to be assumed true. It is possible, he concedes, that when all the facts are in, the government practices in question will be found to be reasonable given the needs of prison management, but that question is for a later stage.
Judge Tatel jumps in. He wants to know whether the detainees have alleged sufficient facts to make their case, and Cohen insists that they have. Judge Tatel next asks about the detainees’ claims of “prolonged detention.” How long after a CSRT's determination that someone is not an enemy combatant can a detention still be considered to have occurred within the scope of employment? Cohen in reply quotes Justice Kennedy emphasizing the difference between “days or weeks” and “months or years.” Cohen explains that his clients’ case is clearly one of months and years.
Judge Tatel next asks about the collective nature of the suit. The heart of this case is that the alleged abuse occurred after the CSRT determination. But, notes Judge Tatel, some of the defendants weren't even serving during the post-CSRT period. Cohen responds that they established policies and procedures that survived into that era. But you haven't alleged that, Judge Tatel points out. Cohen says this is a discussion for the district court, but Judge Tatel is having none of it. After all, he explains, the appeals court is examining this case de novo so it effectively is the district court for purposes of this question. Cohen says he think the allegation is reasonably inferred from the complaint, but to the extent it is not, he asks for the opportunity to amend the complaint to make the relationship between defendant conduct and the alleged abuse clearer.
Judge Tatel has another problem with the complaint: For one of the three detainees cleared by the CSRT, he notes, the allegations of abuse do not seem to have taken place after the CSRT determination. Cohen concedes the point. In that case, he says, the complaint alleges he was held for 10 months following the determination. Again, he says, with the court's permission, he would amend the complaints to make those allegations more sufficient, though the duration of detention claim alone, he suggests, should be adequate.
Absent further questions, Cohen takes his final minute to draw the Court’s attention to a prior non-Guantanamo case in which a Smithsonian worker was found to be acting outside of the scope of her employment when she yanked a colleague’s neck lanyard. In that case, he argues, some of the defendant's conduct took place within the scope of employment, but the court found the lanyard-yanking did not. Cohen urges the Court to consider this precedent when deciding whether it is plausible that the defendants’ activities were outside the scope of their employments as to their post-CSRT conduct even if the pre-CSRT conduct is controlled by Rasul.
Judge Randolph now has an unrelated question. He asks whether the appellants were interrogated after the CSRT determination. Not by Americans, Cohen replies. But one detainee was subsequently interrogated by the Algerians. And, he notes, the detainees did have their Korans removed---and deprivation of religious materials is explicitly approved as an interrogation technique in orders issued by Secretary Rumsfeld.
Judge Tatel asks a final question: Would even non-abusive interrogation be forbidden after a CSRT determination? Cohen answers that it would be. Why, Judge Tatel asks? Because everything changes once a CSRT clears someone, Cohen answers. The goal at that point is simply to effectuate release. It is not to continue to hold or interrogate them.
Sidney Foster takes the podium for the Department of Justice. She begins by explaining that the proper inquiry here concerns the specific conduct alleged about the specific defendants and how that matches up with what their jobs were. The specific defendants named in this case, she argues, only acted within the scope of their jobs. They did things like issuing orders governing detention and interrogation. All of their conduct took place in the context of ensuring effective command and control over Guantanamo Bay.
Judge Tatel interrupts relatively quickly. The plaintiffs are alleging specific incidents of torture of which the named officials were aware or should have been aware, no? Foster disagrees that the allegations are specific. Judge Tatel interrupts again. There are references to specific instances of mistreatment of the plaintiffs, he notes, and there are general allegations that the officials were aware or should have been aware of them. Why is this not good enough? We don't know, Foster argues, that the named officials were aware of any specific allegation of mistreatment. Judge Tatel reminds Foster that the case is still at the motion to dismiss phase, in which the Court treats the plaintiffs’ allegations as though they were undisputed facts. Why can't these allegations, taken as undisputed fact, survive a motion to dismiss?
It takes some more back and forth---and a brief interlude for an exchange with Judge Randolph regarding the application of DC employment law to Guantanamo---before Foster is able to make her point clearly to Judge Tatel. She argues that the failure of the named defendants to prevent or stop abuse merely constitutes a failure in the fulfillment of an employment function. So even if the defendants accept that certain abuses occurred after the CSRT ruling, and even if the named defendants knew about and failed to prevent these abuses, and even if the employment responsibilities of the defendants did indeed shift to a protective and transfer role exclusively, the conduct by the named officials would still be within the scope of their employment. It would simply constitute a poor job performance in the fulfillment of this protective duty. Judge Tatel seems genuinely surprised by this but says he’ll consider the point. Foster may have just made some headway.
But Judge Tatel isn’t finished yet. He now takes up the question of whether Secretary Rumsfeld may be---according to the allegations, anyway---directly responsible for the removal of Korans from the detainees. According to regulations, removal of religious items was a specifically approved interrogation technique, and approved by Rumseld himself. So if detainees' Korans were taken, wouldn’t this have happened as a result of an affirmative directive from Secretary Rumsfeld? Foster’s response is two-fold: first, that the timing of the order in question long predates the CSRT's determination, and second, that the defendant's activities were clearly part of running a detention and interrogation facility and were thus within the scope of his employment.
Judge Randolph jumps in, suggesting that the Court may have already ruled on the issue at hand in Rasul. He asks Foster, as he asked Cohen earlier, whether the Rasul defendants specifically claimed not to be enemy combatants. She doesn't know either.
Judge Tatel now pushes back against the premise that Rasul controls this case. He asks Foster about the language of the Rasul decision, which repeatedly referred to the detainees as “enemy combatants” and even “suspected terrorists.” Foster answers that that this language is there because that's the situation the court confronted in that case, but it is not in her view determinative of the outcome and was not intended to limit the decision or its rationale to those who are actually enemy combatants. The rationale of the decision, she argues, was that it was the defendants’ job to maintain a detention facility and that the alleged actions were all in furtherance of this purpose. That is the same in this case. Judge Tatel is skeptical. He wasn't on the Rasul panel, he notes, but if Foster is right, there would have been no reason to repeatedly include language that seems to hinge everything on the detainee's status.
He pushes on. In Rasul, he points out, there was no suggestion of “rogue employees” exceeding the scope of their jobs. But the allegations in this case are different: the unnamed “Doe” defendants are accused of precisely this sort of rogue activity. Foster explains that the substitution was only with respect to the named defendants, so the Doe defendants are no longer at issue. What's more, those of the allegations against the named defendants that may be specific enough to survive a motion to dismiss apparently involve conduct that predates the CSRT. And those that involve the relevant period are all so general that there is simply no reason to infer that the defendants were acting with a purpose other than serving their employer's goals---and that the conduct was thus beyond the scope of the employment. The result is that all of the allegations are insufficient. All of the defendants’ alleged activities were either a failure in the performance of legitimate employment functions or an attempt to ensure command and control. No allegations point to any conduct by subordinates that was not pursued for the purposes of the employer.
Judge Tatel gives Cohen two additional minutes to respond to some final questions. He asks Cohen to respond to Foster’s claim that failure to prevent abuse still qualifies as conduct within the scope of employment. Cohen resists answering directly and repeats his assertion that any conduct that did not effectuate the transfer of the detainees is beyond the scope of employment. After prodding from Judge Tatel, this is still his answer.
Judge Randolph also has a final question: He asks Cohen what law is violated by the removal of Korans from detainees. Cohen replies that when such removal is done with personal animus it takes place outside of the scope of employment. Randolph pushes: What if this were the only allegation? What law would this violate? It would constitute cruel and inhumane treatment that is banned by international law, and subject to lawsuit under the Alien Tort Statute---particularly in combination with the prolonged detention. Judge Randolph says this raises a host of problems. If a U.S. citizen sued and said his Bible had been removed, he couldn't get damages because international law makes that illegal, Judge Randolph says. If that's the case, why is it that an alien in a foreign country has a cause of action here? Cohen replies that this case has to do with the totality of the allegations, in which the removal of the Koran takes place in the context of a prolonged detention in which there is also physical abuse. In that context, he submits that it makes out a claim under the ATS and international law. In any event, he concludes, at this stage the only question is whether it makes out a plausible claim, and Cohen submits that it does.
The case comes to a close.