Update in Hamad v. Gates

The government has filed its brief in Hamad v. Gates, an appeal to the United States Court of Appeals for the Ninth Circuit.  Like Al-Nashiri v. MacDonald, another case pending in that court, Hamad raises questions about the due process rights of detainees, the immunity of federal personnel, and jurisdiction over Bivens claims after Boumediene. Background: Hamad, a former Guantanamo detainee, sued twenty-two United States government officials in their individual capacities for violations of the Fifth Amendment, the Geneva conventions, and international human rights law.  A citizen and resident of Sudan, Hamad was detained for over five years following his capture in Pakistan in 2002.  He was never charged with any crime. In 2005, a Combatant Status Review Tribunal (“CSRT”) determined that Hamad was an ‘enemy combatant.’  Later that year, Hamad’s Administrative Review Board (“ARB”) nevertheless concluded that he was ‘eligible to be released from Guantanamo’---this, despite the ARB’s insistence that Hamad ‘continued to be a threat to the United States and its allies.’ Following diplomatic negotiations, Hamad was transferred from Guantanamo to Sudan in late 2007.  His federal lawsuit followed.  In an action for money damages, Hamad claimed that the process used by the CSRT to determine his enemy combatant status was flawed, and that he was subjected to torture while being detained unlawfully. Judge Marsha Pechman, of the United States District Court for the Western District of Washington, dismissed the plaintiff’s case.  She rejected the government's contention that in Boumediene,  the Supreme Court had invalidated only one part of Section 7 of the MCA---namely, that which purported to strip the federal courts of jurisdiction over petitions for writs of habeas corpus by Guantanamo detainees.  As the Justice Department saw things, Boumediene had left untouched a similar ban on Bivens actions like by detainees like Hamad.  The district court thought otherwise, and found instead that Boumediene had struck down Section 7 in its entirety. That didn't save the plaintiff's suit.  Despite his filing an amended complaint, Judge Pechman later determined that Hamad was unable to state facts that, even if true, could plausibly make Secretary of Defense Gates personally liable for alleged violations of Hamad’s Fifth Amendment rights.  And although unnecessary to the dismissal, Judge Pechman  also went on explicitly to deny Gates’ claim of qualified immunity—a maneuver which all but guaranteed a cross-appeal by the United States. In his appellate brief, Hamad challenges the district court’s dismissal of all defendants other than Secretary Gates---a domiciliary of Washington---for lack of personal jurisdiction.  (Below, the plaintiff had sought, unsuccessfully, to establish such jurisdiction under federal statutes, or in the alternative, under ‘federal common law.’) The appeal further contests the district court’s determination that the United States properly could substitute itself for the Defense Secretary as the case's defendant, because the latter acted at all times in his official capacity.  Finally, Hamad says the district court was wrong to dismiss his claim that Gates personally had a hand in violating his constitutional rights. Unsurprisingly, the government's brief argues that a Bivens cause of action is unavailable to Hamad; and, in the alternative, that Gates is entitled to qualified immunity.  Pointing to Al-Zabrani, Kiyemba, and Al-Nashiri, Justice Department lawyers say the district court was mistaken about Boumediene: that case did not, in fact, invalidate § 2241(e)(2), the Military Commissions Act provision that deprived courts of jurisdiction over Bivens actions.  To the contrary, the Supreme Court there concentrated entirely on § 2241(e)(1)---after all, this provision purported to deprive the courts of habeas jurisdiction over Guantanamo, which happened to be the case's central issue.  Boumediene thus left the Bivens­-blocking language in tact; it ought to bar Hamad’s suit.  In any case, the government continues, the very enactment of § 2241(e)---whatever its constitutionality---reflects Congress’s desire to preclude Bivens liability going forward.  It thus would be “improper for a court to recognize a judicially-created money damage remedy in this context of military detention related to an ongoing armed conflict, particularly given that congress has clearly expressed its view that no Bivens cause of action should lie here.” As for Gates’ liability, the government cites various decisions since Boumediene to rebut Judge Pechman’s denial of qualified immunity, arguing that constitutional rights of Guantanamo detainees were not ‘clearly established’ at the time of Hamad’s transfer. Boumediene’s 2008 ruling, decided a year after Hamad’s 2007 transfer to Sudan, cannot be controlling when the “threshold question is whether a reasonable military official could have believed during the relevant time period that an alien military detainee held at Guantanamo cannot invoke Fifth Amendment rights.” The government further contends that in any event, the Boumediene decision is limited to detainees’ rights to petition for writs of habeas corpus.  It cannot validly be interpreted as conferring a wider range of constitutional rights upon detainees retrospectively. "Even if some rights [of detainees] were recognized, the content of those rights was not clearly established during the time of [Hamad’s] detention," the government insists. The United States’ brief lastly reinterprets Hamad’s customary international law and Geneva convention claims, as amounting to a larger “claim that Secretary Gates should have released [Hamad] earlier based on the determination by the Designated Civilian Official that he [was] eligible for transfer.” If the court accepts this interpretation, then Hamad may have a tough time showing that his extended two year stay at Guantanamo, following an ARB determination that he was eligible for transfer, was indeed a violation of his (contested) due process rights. A CSRT determined more than six months prior to the ARB hearing that he was an enemy combatant, making his detention lawful, the government argues. The government describes the ARB decision to transfer Hamad as “merely giving the executive discretion to transfer the plaintiff prior to the end of hostilities,” dependent on negotiations with the Sudanese government. Raising a familiar separation of powers concern, the brief finally argues that any investigation regarding the timeliness of Hamad’s transfer would open the door to courts’ involvement in sensitive diplomatic and security issues that should be solely within the control of the Executive branch.