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

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.

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."