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Ninth Circuit: No Subject-Matter Jurisdiction In Hamad v. Gates
The Ninth Circuit Court of Appeals has issued its memorandum opinion in Hamad v. Gates, a challenge by a former Guantanamo detainee to his detention and treatment while in U.S. custody. It found that §2241(e)(2) of the Detainee Treatment Act strips it of any jurisdiction to hear Hamad's claims.
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The Ninth Circuit Court of Appeals has issued its memorandum opinion in Hamad v. Gates, a challenge by a former Guantanamo detainee to his detention and treatment while in U.S. custody. It found that §2241(e)(2) of the Detainee Treatment Act strips it of any jurisdiction to hear Hamad's claims. We've written about the questions presented in this case before, most recently when the government submitted supplemental authority supporting its position that the Ninth Circuit lacks subject-matter jurisdiction over the case.
Adel Hassan Hamad, a Sudanese national, was captured in 2002 in Pakistan by Pakistani security forces, later transferred to Bagram Airfield and then to Guantanamo. A Combatant Status Review Board determined in March 2005 that Hamad was an "enemy combatant." Another board later that year classified him as eligible for transfer to Sudan, a transfer which was completed after the U.S. and Sudan reached an agreement on the terms in 2007.
Hamad later sued more than 100 federal officials, including then-Secretary of Defense Robert Gates for money damages in a federal district court in Washington State. Hamad made seven claims in his suit under the Constitution, state common law and the Alien Tort Statute: prolonged arbitrary detention; cruel, inhuman or degrading treatment; torture; targeting of a civilian; denial of due process, forced disappearance, and violation of due process under the Fifth Amendment.
In the district court below, all defendants besides Robert Gates were dismissed for lack of personal jurisdiction. The court granted a government motion to substitute it for Secretary Gates, and it dismissed the international law claims against the government. This left a single claim remaining: that Secretary Gates violated Hamad's Fifth Amendment due process claims. This the district court also dismissed, on grounds that Hamad had failed to plausibly allege that Secretary Gates was personally involved in the violation of his rights. Bobby and Jonathan Chafetz of Seton Hall had a mini-debate of sorts on Lawfare about the district court's conclusions regarding qualified immunity.
The Ninth Circuit sweeps away Hamad's two arguments: first, that the Supreme Court's decision in Boumediene v. Bush struck down §2241(e)(2) when it invalidated §2241(e)(1), the provision of the Detainee Treatment Act stripping courts of jurisdiction over non-habeas challenges from Guantanamo detainees; and in the alternative, that if §2241(e)(2) provision remains in the aftermath of Boumediene, it cannot be severed from §2241(e)(1). Circuit Judge Sandra Ikuta says of Boumediene's reach:
the Supreme Court took pains to emphasize that it was invalidating § 2241(e) only to the extent that the statute barred the petitioners from filing habeas corpus actions: “[o]ur decision today holds only that petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court.”
To Hamad's second argument, regarding severability, the court walks through the severability analysis laid out in United States v. Booker: it is required to leave intact portions of the statute that are "(1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress' basic objectives." The court finds that §2241(e)(2) can function independently of §2241(e)(1), given the provisions' separate foci on non-habeas challenges and habeas petitions, respectively. It then concludes that §2241(e)(2) addresses Congress's basic objectives, given its sweeping language, it demonstrates that Congress was:
The court similarly does away with Hamad's arguments regarding the constitutionality of §2241(e)(2). First, since Hamad sought only money damages, which are "not required for every violation of constitutional rights," the Ninth Circuit is not required to address whether or not the provision is constitutional. Nor is §2241(e)(2) an unconstitutional bill of attainder, the court finds, as it does not inflict "legislative punishment" and Congress had no "punitive intent" in enacting the provision. The last argument Hamad makes relates to the provision's constitutionality under the Due Process clause of the Fifth Amendment. On this matter, the court concludes that Congress's choice to limit only alien detainees from bringing damage actions passes rational basis review, and is neither arbitrary nor irrational. The appeals court vacated the district court's orders and remanded the case to the district court for a judgment dismissing Hamad's suit.. . . not concerned solely with habeas suits, but also sought to prevent alien detainees from bringing any other type of action that related to their detention or treatment. Considering that the two sections of § 2241(e) address two different types of lawsuits, we see no reason that Congress would not have enacted § 2241(e)(2)’s bar on non- habeas suits had it known that detainees could file for habeas.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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