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Oral Argument Preview: Al Laithi v. Rumsfeld (Detainee Abuse Case)

Jane Chong
Friday, February 21, 2014, 6:23 AM
Today D.C. Circuit Judges David Tatel, Janice Rogers Brown, and A. Raymond Randolph will hear oral arguments in Al Laithi v. Rumsfeld.

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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.
In the wake of the district court's opinion in the Rasul cases, detainees' counsel have doubled down on the argument that the courts have subject-matter jurisdiction over the international law claims asserted by Sami Abdulaziz Allaithi, Zakirjan Hasam, and Abu Muhammad under the ATS.
These three detainees are distinguishable from their fellow appellants---and the petitioners in Ali and Rasul I---in that they underwent Combatant Status Review Tribunals (CSRTs) in late 2004 and were cleared of their designation as "enemy combatants." This is relevant to the big-picture question going into the argument: whether former Guantanamo detainees may seek civil damages from U.S. government officials who imprisoned them and allegedly abused them even after a CSRT cleared them of enemy combatant status. The legal hurdle: for the courts to have jurisdiction, the detainees must show that the defendants were acting outside "the scope of their employment" in inflicting the alleged abuse.
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."
Here's what to listen for tomorrow if the court ventures to subjects other than the significance of CSRT determinations for its jurisdiction over the detainees' ATS claims.
1. Bivens: Plaintiffs allege that defendants violated the First and Fifth Amendments to the Constitution with their abuse under Bivens. Defendants assert that a) they are entitled to qualified immunity where constitutional rights for alien military detainees are not clearly established and b) special factors counsel against military-detention context.
2. Religious Freedom and Restoration Act (RFRA): The RFRA provides that the “Government shall not substantially burden a person’s exercise of religion,” unless certain conditions are met. Expect the government to point to Rasul II to explain that as nonresident aliens, the detainees are not protected “persons” under the statute.
3. Federal Civil Rights Act: 42 USC § 1983(3) provides a right of action for damages for the victim of a conspiracy by two or more persons with “the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . . . .” Just as with respect to the detainees' Bivens claims, the government will claim at the time of the alleged violations it was not clearly established that the detainees had any such constitutional rights.
Check out the government brief (and Lauren's summary of its contents) and the detainee reply brief (along with Sean's overview).

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

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