ORAL ARGUMENT NOT YET SCHEDULED. No UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 1 of 88 ORAL ARGUMENT NOT YET SCHEDULED No. 12-5017 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ABDUL RAHIM ABDUL RAZAK AL JANKO Plaintiff-Appellant v. ROBERT M. GATES, et al. Defendants-Appellees On Appeal from the U.S. District Court for the District of Columbia (D.D.C. Case No.: 1:10-CV-01702 RJL) PLAINTIFF-APPELLANT S OPENING BRIEF Terrence Collingsworth (DC Bar No. 471830) Conrad & Scherer, LLP 1156 15th St. NW Suite 502 Washington D.C. 20005 Phone: 202-543-4001 Fax: 202-527-7990 tcollingsworth@conradscherer.com Paul L. Hoffman SCHONBRUN DESIMONE SEPLOW HARRIS HOFFMAN & HARRISON LLP 723 Ocean Front Walk Venice, CA 90291 Tel: (310) 396-0731 Fax: (310) 399-7040 hoffpaul@aol.com Counsel for Plaintiff-Appellant January 9, 2013

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 2 of 88 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES Pursuant to the Court s Order of January 25, 2012 (Doc. 1354626), counsel for Plaintiffs-Appellant certify as follows: A. Parties Plaintiff-Appellant in this matter is Abdul Rahim Abdul Razak Al Janko. Defendants-Appellees in this matter are Individual Defendants Robert M. Gates; Donald Rumsfeld; Paul Wolfowitz; Gordon England; James McGarrah; Geoffrey D. Miller; Jay Hood; Harry B. Harris, Jr.; Mark H. Buzby; David Thomas; Thomas H. Copeman III; Adolph McQueen; Nelson J. Cannon; Michael Bumgarner; Wade Dennis; Esteban Rodriguez; Paul Rester; Frank Wiercinski; John Ashcroft; Robert Mueller; John Does 1-50; Jane Does 1-50 and Defendant United States. B. Rulings Under Review The ruling under review is the decision of the United States District Court for the District of Columbia (U.S. District Judge Richard J. Leon), entered on December 22, 2012, granting Defendant United States Motion to Dismiss Counts Five Through Seventeen and Individual Defendants Motion to Dismiss Counts One Through Four and Count Eighteen, and dismissing this case with prejudice. Al Janko v. Gates, 831 F.Supp.2d 272 (D.D.C. 2011). i

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 3 of 88 C. Related Cases The case on review has not been before this Court on any previous occasion. Plaintiffs are not aware of any pending related cases. ii

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 4 of 88 TABLE OF CONTENTS Page(s) Introduction........................................................ 1 Jurisdiction......................................................... 3 Statement of the Issues............................................... 4 Statement of the Case................................................ 5 Statement of Facts................................................... 6 Summary of Argument............................................... 8 Standard of Review................................................. 10 Argument......................................................... 11 I. The Military Commission Act Does Not Bar Plaintiff s Claims......... 11 A. The United States Has Determined That Plaintiff Was Not Properly Detained and Was Not an Enemy Combatant.......... 11 1. The Plain Language of the Statute Indicated That the United States Has Determined that Janko Was Not Properly Detained.............................. 12 2. The Provision of the Statute for Judicial Review of CSRT Decisions Indicated That Congress Intended to Allow Other Entities Besides CSRTs to Determine Whether A Person Was Properly Detained............... 16 3. A Finding That Janko Falls Outside the MCA s Jurisdictional Bar Would Be in Accordance with Past Precedent...................................... 19 iii

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 5 of 88 B. The Court Should Avoid Any Constitutional Questions By Construing the Statute Not to Include Detainees Who Have Been Determined by a Court to Never Have Been Properly Detained................................................ 22 1. The MCA is Unconstitutional As Applied to Plaintiff....... 22 a. The CSRT Process Is an Inadequate Substitute For Due Process, Which Is Required to Properly Determine Enemy Combatant Status.......... 22 b. MCA 7(e)(2) is Unconstitutional under Traditional Due Process Principles............ 25 c. Interpreting 7 to Bar Jurisdiction Conflicts with Aarticle III and Separation of Powers Principles.29 2. The Constitutional Avoidance Canon Dictates that the Court Interpret the Statute Away from Raising the Above Constitutional Questions.............................. 31 II. Janko s FTCA Claims Against the United States May Proceed Because They Did Not Arise in a Foreign Country and They are Pursuant to the Law of the Place................................ 32 A. The Foreign Country Exception Does Not Apply to Guantánamo Bay......................................... 32 1. The Factors Applied in Past Cases Indicate that the Guantánamo Bay Naval Base is Not a Foreign Country..... 33 2. U.S. Law, Rather Than Cuban Law, Applies at Guantánamo....................................... 39 B. The Law of the Place is U.S. Law, Including Customary International Law Incorporated Into the Law of the District of Columbia............................................. 41 iv

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 6 of 88 III. The United States Should Not Be Substituted in All of Janko s Alien Tort Statute Claims as Certain Egregious Mistreatment of Plaintiff Falls Outside the Scope of Defendants Employment.......... 43 IV. Plaintiff s Bivens Claims Should Not Have Been Dismissed............ 53 A. Defendants are Not Protected by Qualified Immunity............ 53 B. Special Factors Do Not Counsel Hesitation Regarding Plaintiff s Bivens Claim................................... 56 Conclusion........................................................ 58 v

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 7 of 88 TABLE OF AUTHORITIES CASES Page(s) *Al Ginco v. Obama, 626 F. Supp. 2d 123 (D.C.C. 2009)............ 6, 8 11, 12, 23-24 56, 58 Al Ginco v. Obama, 634 F. Supp. 2d 109 (D.D.C. 2009)............................. 1, 5 Al Janko v. Gates, 831 F. Supp. 2d 272 (D.D.C. 2011).............................. 32 Al-Adahi v. Obama, 596 F. Supp. 2d 111 (D.D.C. 2009).............................. 20 Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012)................................ 19, 25 Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 110 (D.D.C. 2010)........................... 14, 19 Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011)....................... 44, 49, 50, 55, 56 Am. Nat. Ins. Co. v. F.D.I.C., 642 F.3d 1137 (D.C. Cir. 2011).................................. 10 Arizona v. United States, 132 S.Ct. 2492 (2012).......................................... 35 Armstrong v. Thompson, 759 F. Supp. 2d 89 (D.D.C. 2011)............................... 47 vi

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 8 of 88 *Ashwander v. TVA, 297 U.S. 288................................................. 32 Bansal v. Russ, 513 F. Supp. 2d 264 (E.D. Pa. 2007).......................... 41, 43 Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987)................................... 30 Bates v. U.S., 517 F. Supp. 1350 (W.D. Mo. 1981)............................. 49 *Boumediene v. Bush, 553 U.S. 7623 (2008)......2, 10, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 36, 48, 54, 55, 56 Broadnax v. Army, 710 F.2d 865 (D.C. Cir. 1983)................................... 38 *Burna v. U.S. 240 F.2d 720 (3d Cir. 1957)..................................... 38 Caminetti v. United States, 242 U.S. 470 (1917)........................................... 13 C.f. Lee v. Walworth Valve Co., 482 F.2d 297 (4th Cir. 1973)................................. 40-41 Chavez v. Martinez, 538 U.S. 760 (2003)........................................... 28 Chung v. U.S. Dep t of Justice, Civ. No. 00-1912, 2001 WL 34360430 (D.D.C. Sept 20, 2001)........ 53 *Cobb v. United States, 191 F.2d 604 (9th Cir. 1951).................................... 38 vii

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 9 of 88 Coles v. City of Chicago, 361 F. Supp. 2d 740 (N.D. Ill. 2005)............................. 51 Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659 (D.C. Cir. 2006)................................... 44 County of Sacramento v. Lewis, 523 U.S. 833 (1998)........................................... 28 Cuban American Bar Ass n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995)................................... 27 Doe v. Rumsfled, 683 F.3d 390 (D.C. Cir. 2012)................................... 57 Downes v. Bidwell, 182 U.S. 244................................................. 26 Early v. Bruno, 2001 WL 775968 (.D. Ill.)....................................... 51 Estate of Rosenberg v. Crandell, 56 F.3d 35 (8th Cir. 1995)...................................... 53 FDIC v. Meyer, 510 U.S. 471 (1994)........................................... 42 Foucha v. Louisiana, 504 U.S. 71 (1992)............................................ 29 Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011).................................... 20 Hamdi v. Rumsfeld, 542 U.S. 507 (2008).................................... 23, 25, 48 *Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992).................................... 40 viii

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 10 of 88 Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y 1993)............................ 26-27 Harlow v. Fitzgerald, 457 U.S. 800 (1982)........................................... 54 *Heller v. United States, 776 F.2d 92 (3d Cir. 1985)...................................... 38 *Hope v. Pelzer, 536 U.S. 730 (2002)........................................... 54 In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 314 (D.D.C. 2008).............................. 20 In re Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay ( Guantanamo Petitioners ), 700 F. Supp. 2d 119 (D.D.C. 2010).............................. 17 Installation of Slot Machs. on U.S. Naval Base, Guantánamo Bay, Op. O.L.C. 246 (1982)......................................... 34 International Distrib. Corp. v. American Dist. Tel. Co., 186 U.S. App. D.C. 305, 569 F.2d 136 (1977)...................... 52 Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), rev d in part on other grounds sub nom Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)................... 57 Juda v. United States, 6 Cl. Ct. 441 (Cl. Ct. 1984).................................... 26 *Ker v. Illinois, 119 U.S. 436 (1886)........................................... 42 Khadr v. Bush, 587 F. Supp. 2d 225 (D.D.C. 2008).............................. 20 ix

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 11 of 88 Kiyemba v. Obama, 555 F.3d 1022 (2009), reinstated by 605 F.3d 1046 (D.C. Cir. 2010).... 55 Linkins v. Protestant Episcopal Cathedral Found. Of D.C., 187 F.2d 357 (D.C. Cir. 1950)................................... 42 Lyon v. Carey; Stokes v. Cross, Kimbro v. Velton, 30 F.3d 1501 (D.C. Cir. 1994)................................... 52 M.J. Uline v. Cashdan, 171 F.2d 132 (D.C. Cir. 1949)................................... 49 *Majano v. United States, 469 F.3d 138 (D.C. Cir. 2006).......................... 42, 47, 49, 52 *Margalli-Olvera v. I.N.S., 43 F.3d 345 (8th Cir. 1994)..................................... 13 Marshall v. Celotex Corp., 651 F. Supp. 389 (E.D. Mich. 1987)............................. 40 *Mitchell v. Forsyth, 472 U.S. 511 (1985)........................................... 57 *Morgan v. District of Columbia, 476 A.2d 1128 (D.C. 1984)...................................... 42 Murphy v. Ramsey, 114 U.S. 14 (1885)............................................ 28 Nishimura Ekiu v. United States, 142 U.S. 651 (1982)........................................... 35 Padilla v. Easley, 1993 WL 18145 (N.D. Ill.)...................................... 51 x

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 12 of 88 Palko v. Connecticut, 302 U.S. 319 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1979).......................... 28 Phelan v. City of Mount Rainier, 805 A.2d 930 (D.C. 2002)....................................... 52 Prosecutor v. Krnojelac, Trial Judgment, Case N. IT-97-25-ICTY; ICL 16 (ICTY 2002) 15 March 2002......... 46 *Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977)................................ 26, 27 *Rasul v. Bush, 542 U.S. 466 (2004)............................... 26, 27, 33, 34, 35 Rasul v. Myers, 512 F.3d 644 (D.C. Cir.), vacated, 129 S.Ct. 763 (2008), reinstated in part, 563 F.3d 527 (D.C. Cir. 2009)............ 3, 50, 51, 52 Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009)................................ 55, 56 Reid v. Covert, 354 U.S. 1 (1957)............................................. 26 Rochin v. California, 342 U.S. 165 (1952)........................................... 28 Russell v. Dupree, 844 F. Supp. 2d 46 (D.D.C. 2012)............................... 47 Safeway Stores, Inc. v. Kelly, 448 A.2d 856 (D.C. 1982)....................................... 48 Schecter v. Merchs. Home Delivery, Inc., 892 A.2d 415 (D.C. 2006)....................................... 49 xi

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 13 of 88 Simmons v. Dist. Of Columbia, 750 F. Supp. 2d 43 (D.D.C. 2011)............................... 53 *Smith v. United States, 507 U.S. 197 (1993)........................................ 37-38 *Snashall v. Metropolitan R. Co., 8 Mackey 399 (D.C. 1890)...................................... 42 Sobitan v. Glud, 589 F.3d 379 (7th Cir. 2009)................................. 41, 43 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)........................................... 42 *Stokes v. Cross, 327 F.3d 1210 (D.C. Cir. 2003)................................... 42 United States v. Corey, 232 F.3d 1166 (9th Cir. 2000)................................... 39 United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000)..................................... 39 United States v. Kirby, 74 U.S. 482 (1868)......................................... 16-17 *United States v. Klein, 80 U.S. 128 (1871)............................................ 30 United States v. Lee, 906 F.2d 117 (4th Cir. 1990).................................... 40 United States v. Rogers, 388 F. Supp. 298 (E.D. Va. 1975)............................ 34, 40 *United States v. Spelar, 338 U.S. 217 (1948)........................................ 35, 39 xii

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 14 of 88 United States of America, for the Use and Benefit of Skip Kirchdorfer, Inc. v. M.J. Kelley Corp, 995 F.2d 656 (6th Cir. 1993).................................... 40 Vermilya-Brown v. Connell, 335 U.S. 377................................................. 35 Yates v. United States, 354 U.S. 298 (1957)........................................ 31-32 Zadvydas v. Davis, 533 U.S. 678 (2001)........................................... 29 STATUTES AND REGULATIONS 10 U.S.C. 948(a)(2)(A)................................................ 15 950(g)..................................................... 16 10 U.S.C.A. 948a(1)(ii).................................................. 14 18 U.S.C.A. 7(3)....................................................... 39 28 U.S.C. 1291....................................................... 4 1331....................................................... 3 1346(b)(1).................................................. 42 2241(c)(2).................................................. 14 2241(e).................................................. 4, 25 * 2241(e)(2)............................................. passim 2680(k).................................................. 9, 32 42 U.S.C. 1985........................................................ 6 xiii

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 15 of 88 Military Commissions Act 7................................................... 21, 26, 31 OTHER AUTHORITIES Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, art. VII, June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67............................................... 33 Agreement between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, art. III, U.S.-Cuba, Feb. 23, 1903, T.S. No. 418................................................. 33 Anthony Boadle, Castro: Cuba Not Cashing U.S. Guantánamo Rent Checks, Reuters, Aug. 17, 2007, http://www.reuters.com/article/ 2007/08/17/idUSN17200921................................... 34 Black s Law Dictionary, 1568 (4th ed. 1951)........................................... 37 Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, 26 June 1987, 23 I.L.M. 1027, 1465 U.N.T.S. 85................................ 46 Neil A. Lewis, Guantánamo Prisoners Getting Their Day, but Hardley in Court, New York Times (November 8, 2004)............................. 53 Restatement (Second) of Agency 228....................................................... 47 228(1)(a)................................................... 48 228(1)(b)................................................... 49 228(1)(c)................................................... 49 235.................................................... 49, 50 Treaty Defining Relations with Cuba, May 29, 1934 U.S.-Cuba, art. III, 48 Stat. 1682, T.S. No. 866.............................. 39 xiv

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 16 of 88 GLOSSARY ATS................................................ Alien Tort Statute CSRT................................. Combatant Status Review Tribunal FAC......................................... First Amended Complaint FTCA.......................................... Federal Tort Claims Act MCA........................................ Military Commissions Act xv

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 17 of 88 INTRODUCTION This case involves a claim by Abdul Rahim Abdul Razak Al-Janko ( Plaintiff or Janko ) against the United States and certain individual federal officials under the Federal Tort Claims Act ( FTCA ), the Alien Tort Statute ( ATS ), and the Constitution. Plaintiff was held for eight years of detention without charge on trial in Afghanistan and for seven years in Guantánamo, during which time he was tortured and otherwise abused. Plaintiff was released as a result of his habeas petition in the fall of 2009. Al Ginco v. Obama, 634 F. Supp. 2d 109 (D.D.C. 2009). The district court found that Plaintiff was never properly detained, and that it defies common sense to characterize him as an enemy combatant. Id. at 128, 130. There was never any basis for Plaintiff s detention or for the torture and abuse he endured even in circumstances wholly unrelated to interrogation. U.S. government officials first found Plaintiff in a former prison run by the Taliban where he had been detained and tortured by the United States enemies. Defendant United States had a copy of a coerced confession videotaped by the Taliban where he was forced to admit that he was an American spy. Nevertheless, federal officials mistakenly accused him of being a terrorist. Even after the Court 1

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 18 of 88 determined that he was not an enemy combatant and ordered Plaintiff released, he was held for another three months in the same abusive circumstances. Plaintiff, who undisputedly was innocent of any act against the United States, seeks redress for violations of universally accepted norms of customary law, including prolonged and arbitrary detention; torture; and cruel, inhuman and degrading treatment pursuant to the ATS and the FTCA. His case is not barred by the Military Commissions Act ( MCA ) because the United States has determined that he was never properly detained as an enemy combatant. The United States is liable under the FTCA, as the foreign country exception does not apply. The United States is the sovereign power at Guantánamo. Cuban law can not be applied there. U.S. law is the governing law, and the de facto test for sovereignty established in Boumediene v. Bush, 553 U.S. 723 (2008), extends to FTCA claims. The discretionary function exception to liability under the FTCA does not apply to plaintiff s claims for negligent supervision because the conduct of the individual defendants violated a federal regulation, a Department of Defense implementing issuance, and the Army Field Manual provided performance management and supervision guidelines to Department of Defense supervisors. Furthermore, the law of the place of the tort is District of Columbia law. District of Columbia law incorporates customary international law, which has been 2

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 19 of 88 recognized since at least the nineteenth century. Thus, plaintiff s tenth and sixteenth claims for cruel, inhuman or degrading treatment and prolonged arbitrary detention, as violations of the law of the District of Columbia cannot be dismissed. Under the Westfall Act, the United States need not be substituted for all of the individual officials named in the complaint. The individual U.S. officials for whom the United States was substituted could not have acted in the scope of their employment when they engaged in unlawful conduct that could not have served the interests of the United States. Under Rasul v. Myers (Rasul I), 512 F.3d 644, 662 (D.C. Cir.), vacated, 129 S.Ct. 763 (2008), reinstated in part, 563 F.3d 527 (D.C. Cir. 2009)(Rasul II), at minimum, plaintiff is entitled to discovery to determine whether specific conduct was inside or outside the scope of employment. Finally, plaintiff s Bivens claims are not barred by special factors counseling hesitation. The district court erred in dismissing this case. JURISDICTION The district court had jurisdiction over this case pursuant to 28 U.S.C. 1331, as it raises a number of federal questions. The district court dismissed the case on December 22, 2011. JA 115. This dismissal was a final order or judgment that disposed of all the Plaintiff s claims. Plaintiffs timely filed a notice of appeal on January 17, 2012. JA 141. The appellate court has jurisdiction pursuant to 28 3

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 20 of 88 U.S.C. 1291. This case is not barred by the Military Commissions Act, as discussed below in the body of the brief. STATEMENT OF THE ISSUES 1. Is Plaintiff s case barred by the Military Commissions Act, 28 USC 2241(e), even though a court has found that he was never properly detained? If so, is the Military Commissions Act constitutional as applied to Plaintiff? 2. Is Guantánamo Bay Naval Base ( Guantánamo ) a foreign country for purposes of the FTCA? 3. Is D.C. law, including customary international law as incorporated therein, the law of the place under the FTCA for claims arising in Guantánamo? 4. Was all the conduct at issue in this case within the individual Defendants scope of employment, or are there ATS claims which can be brought against individual defendants without substituting the United States? 5. Do defendants have qualified immunity with regard to Plaintiffs Bivens claims? 6. Do special factors counsel hesitation with regard to Plaintiffs Bivens claims? 4

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 21 of 88 STATEMENT OF THE CASE In June of 2005, Plaintiff, while detained at Guantánamo, filed a petition for writ of habeas corpus in the D.C. District Court, and on June 22, 2009, Judge Leon determined that Plaintiff was not properly detained, finding it inescapable that Plaintiff was not part of Al Qaeda (or the Taliban) and thus was not lawfully detainable. Al Ginco, 626 F. Supp. 2d at 130. Judge Leon ordered Plaintiff s release. Id.; JA 121, Op. at 7. Despite this ruling, Plaintiff continued to be held in inhumane conditions of detention until October 7, 2009. JA 49, FAC 99, 100. He was released to a country outside the United States willing to sponsor him where he continues to reside. On April 29, 2011, Plaintiff brought this lawsuit seeking damages for the physical and psychological injuries suffered during his detention without charge or trial. The district court dismissed the case under Rule 12(b)(1), holding that Section 7 of the MCA bars damages claims by aliens who have been released from Guantánamo pursuant to a successful habeas petition. JA 125, Op. at 11. The district court dismissed the FTCA claims based on the foreign country exception, JA 135, Op. at 21, and dismissed the ATS claims because the U.S. would not be liable in accordance with the law of the place where the act... 5

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 22 of 88 occurred, JA 130-34, Op. at 16-20. The court stated that qualified immunity would protect the individual defendants from the Bivens and 42 U.S.C. 1985 claims. JA 129, Op. at 15 n.13. Plaintiff filed a timely appeal. Defendants filed a motion for summary affirmance. On October 17, 2012, a panel of this Court denied the motion. JA 127. STATEMENT OF FACTS Plaintiff s miseries began in 2000 when he decided to travel to Afghanistan from Qatar because of a family argument. Joint Appendix ( JA ) 20, First Am. Compl. ( FAC ) 52 53. He arrived in Afghanistan long before the United States and the Taliban were engaged in military conflict. Id. Plaintiff was found in Afghanistan by the Taliban and taken involuntarily to a Taliban camp. Al-Ginco v. Obama, 626 F.Supp. 123, 126 (2009). In the Taliban camp, he immediately got into trouble because he refused to fight for the Taliban. JA 34, FAC 54 55. He was imprisoned and tortured until he falsely confessed to being a U.S. and Israeli spy to end the torture. JA 129, Op. at 5. He was sentenced to twenty-five years imprisonment by a Taliban tribunal. JA 35, FAC 58. His confession was broadcast in Qatar where his family learned of his imprisonment. Plaintiff then spent eighteen months in horrific conditions of detention in a Taliban-run prison. JA 119, Op. at 5; JA 35, FAC 58. 6

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 23 of 88 After September 11, 2001 and the U.S. invasion of Afghanistan, Plaintiff was freed when U.S. and Afghan troops drove the Taliban out of Kandahar. JA 36, FAC 59. The prison he was held at closed but non-afghan prisoners stayed in the prison for protection in the midst of the upheaval. Id., FAC 60. Plaintiff soon contacted the U.S. government though western media and offered to act as a material witness and testify to Taliban atrocities he witnessed, including human rights violations committed against U.S. citizens. JA 37, FAC 63. Initially, U.S. forces were interested in his evidence but then, disregarding available evidence, the military took Plaintiff to be a suicide martyr and Plaintiff entered into his Kafkaesque nightmare. JA 119 20, Op. at 5 6. U.S. forces took Plaintiff into custody at Kandahar Air Base where he was subjected to torture and other cruel treatment. Id. Plaintiff was then transferred to Guantánamo Bay, Cuba. Id. While at Guantánamo, Plaintiff endured horrific conditions. Plaintiff was urinated upon, tied, shackled, force-fed, and subjected to solitary confinement. JA 40, FAC 71-72. He was also subjected to sleep deprivation, exposure to very cold temperatures, humiliation, and harassment. JA 40 41, FAC 71, 73, 76. He was beaten and his family was threatened. Id 75. He was denied medical and 7

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 24 of 88 psychological care, and he attempted suicide at least seventeen times. Id. 74, 78; see also JA 123 24, Op. at 9 10. In 2004, a Combatant Status Review Tribunal ( CSRT ) found that Plaintiff was an enemy combatant and could be detained at Guantánamo. JA 120, Op. at 6. The CSRT relied on improper evidence, including a coerced confession. Id. In response to Plaintiff s petition alleging that the first CSRT proceeding was flawed, JA 47, FAC 95, a second CSRT panel was convened in 2008 and again found that plaintiff was an enemy combatant, relying on the same flawed evidence as the first CSRT. JA 120, Op. at 6; JA 47, FAC 96. The CSRT determination was found to be erroneous in the habeas proceeding on June 22, 2009; in fact, Judge Leon found that an assertion that Plaintiff was an enemy combatant defie[d] common sense and that his detention was unlawful from the very beginning. Al- Ginco, 626 F.Supp.2d at 128, 130. SUMMARY OF ARGUMENT The jurisdictional bar found in the Military Commissions Act ( MCA ), 28 U.S.C. 2241(e)(2), does not preclude any recovery by a plaintiff who has been determined by a United States court not to have been an enemy combatant. In this case, the United States has determined that Plaintiff was never properly detained as an enemy combatant: the district court found that he was not an 8

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 25 of 88 enemy combatant and had been unlawfully detained. Because Plaintiff was imprisoned and tortured by the Taliban prior to September 11, 2001, the district court found that there was no basis to detain him. The district court erred in applying the MCA to him and barring his claims. The district court also erred in dismissing Plaintiff s FTCA claims on the ground that they arose in a foreign country. Guantánamo Bay does not fall within the foreign country exception of the FTCA, 28 U.S.C. 2680(k) (2006). In determining whether territory leased by the United States abroad is still a foreign country for purposes of the exception, courts examine the factual and legal context in the particular territory. As Cuba has virtually no sovereignty over Guantánamo Bay, and it is undisputed that the base is within the United States exclusive jurisdiction and control, the foreign country exception does not apply. Furthermore, claims based on customary international law may be brought under the FTCA because such claims would be recognized in the District of Columbia. In any event, District of Columbia law should be applied to Plaintiff s claims under the FTCA whether or not claims based on customary international law would be accepted in D.C. courts. This Court should also find that Plaintiff s ATS claims for torture and cruel, inhuman and degrading treatment or punishment are not barred by the FTCA. The 9

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 26 of 88 Westfall Act does not apply to Plaintiff s ATS claims because much of the conduct he complains of took place outside the scope of the individual defendants employment. Conduct that did not serve the interests of the United States and was clearly illegal should not be considered within the scope of employment. Plaintiff s Bivens claims should not have been dismissed for similar reasons. Any federal official should know that the conduct alleged in Plaintiff s complaint violates the Constitution. Moreover, Plaintiff also brings claims that arose after Boumediene v. Bush, 553 U.S. 723 (2008) was decided, altering the qualified immunity analysis. Thus, at least with respect to these claims, prior circuit authority does not govern Plaintiff s claims here. Special factors do not preclude Plaintiff s Bivens claims. STANDARD OF REVIEW The district court dismissed this case on a motion to dismiss under 12(b)(1). The appellate court reviews the dismissal de novo, assuming the truth of the facts in the complaint and granting the plaintiff the benefit of all inferences. Am. Nat. Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011). 10

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 27 of 88 ARGUMENT I. THE MILITARY COMMISSIONS ACT DOES NOT BAR PLAINTIFF S CLAIMS. A. The United States Has Determined That Plaintiff Was Not Properly Detained and Was Not an Enemy Combatant. The district court erred in finding that the Military Commissions Act (MCA) prohibits this and any other Court from hearing cases such as Plaintiff s. JA 126, Op. at 12. The MCA s jurisdiction-stripping provision, 28 U.S.C. 2241(e)(2), only bars claims relating to any aspect of the detention,... treatment,... or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (emphasis added). As discussed below, since a United States federal court has already conclusively determined that Plaintiff was not properly detained as an enemy combatant, Plaintiff does not fall within the MCA s jurisdiction stripping provision under the plain language of the statute. See Al-Ginco, 626 F. Supp.2d at 130 (finding Plaintiff s detention to be unlawful ). In other provisions within the MCA, where Congress intended to refer only to a determination by a CSRT, Congress explicitly referred to the CSRT by name and not as the United States. 11

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 28 of 88 This court has not previously decided the scope of this language in the MCA. Because Plaintiff s innocence has already been determined, this case falls outside the MCA s jurisdictional bar. 1. The Plain Language of the Statute Indicates That the United States Has Determined that Janko Was Not Properly Detained. Section 7 by its plain text sets out two situations where jurisdiction over a detainee s action is barred. First, jurisdiction is barred if an alien is determined by the United States to have been properly detained as an enemy combatant.... 28 U.S.C. 2241(e)(2) (emphasis added). Second, jurisdiction is barred if an alien is awaiting such determination. Id. The MCA unambiguously does not apply to Plaintiff s action. His case has already been reviewed and concluded by a federal district court; the United States, in this case the district court, has made a final determination that he was never properly detained. The court found that the Government had failed to establish by a preponderance of the evidence that Janko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, because it was clear that when he was detained in 2002 that he was not a member of either Al-Qaeda or the Taliban. Al Ginco v. Obama, 626 F. Supp. 2d 123, 130 (D.D.C. 2009). Thus, it has already been determined by the United States that Plaintiff was never properly detained. 12

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 29 of 88 The plain text of the MCA, read in harmony with its other provisions, includes a court as part of the United States for purposes of the statute. Moreover, the phrase has been determined refers to the operative determination, not to an intermediate determination that was later overturned. Thus, the plain text indicates that individuals such as Plaintiff who have been found by a habeas court to not have been properly detained, and not to have been enemy combatants, are not barred by the jurisdiction-stripping provision of the MCA. See Caminetti v. United States, 242 U.S. 470 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms.") The plain meaning of the term United States encompasses courts as part of the United States government. It was established long before the passage of the MCA that United States refers to any official or agency within the United States Government. Margalli-Olvera v. I.N.S., 43 F.3d 345, 352 (8th Cir. 1994) ( the term United States is a reference to the entire United States government and all the agencies thereof ). 1 The statute does not use more narrow language such as 1 Moreover, a dictionary or common sense meaning of United States Government, is "[T]he executive and legislative and judicial branches of the federal government of the United States." 13

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 30 of 88 the President, the Executive, a competent military tribunal or the Combatant Status Review Tribunal. Courts and judges are part of the United States for purposes of 2241. For example, the same section of the United States Code sets out the right of detainees to file habeas petitions when they are held pursuant to or an order process, judgment or decree of a court or judge of the United States. 28 U.S.C. 2241(c)(2). Even language in Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 110 (D.D.C. 2010), cited by the Defendants with approval on another issue in this litigation, supports Plaintiff s construction: [t]he plain language of the statute precludes jurisdiction over claims by aliens who ha[ve] been determined to be enemy combatants by the United States.... Nothing in the statute qualifies the necessary determination or suggests that it must be conducted in a particular way. Id. In the original MCA, Congress referred specifically to CSRTs when it meant to specify that the determination must be made by a CSRT. For example, in the original definition of unlawful enemy combatant, Congress referred specifically to a determination by a CSRT. See Military Comm ns Act of 2006, Pub.L. No. 109-366, 3 (10 U.S.C.A. 948a(1)(ii)) (2006))(unlawful enemy combatant is any person who, before, on, or after the date of the enactment of the Military http://www.thefreedictionary.com/united+states+government). 14

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 31 of 88 Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. ). Yet in the jurisdiction-stripping provision, Congress did not use that language but instead referred to the United States as a whole. 28 U.S.C. 2241(e)(2). The plain text of the statute demonstrates that United States is not identical to CSRT. Second, the text of the statute indicates that the phrase has been determined must refer to a detainee s current status, and not to previous, invalid determinations. The fact that the relevant determination is the currently operative determination is reflected in the use of the word properly to modify detained. The determination at issue is not the initial determination to detain someone or to transfer them to Guantánamo. It is the final determination of whether or not the detention was proper. Another section of the MCA supports this interpretation. Where the statute refers to classified information, the use of has been determined is used to refer to the final or most recent determination. In 10 U.S.C. 948(a)(2)(A), classified information is defined as any information or material that has been determined by the United States Government... to require protection. Military 15

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 32 of 88 Commissions Act of 2006, Pub. L. No 109-366, 948(a), 120 Stat. 2600 (emphasis added). In using that language, Congress did not intend to protect declassified information under the statute simply because the information had once been classified. Thus, the District Court erred in its decision that the CSRT determinations brought Plaintiff s claims within the jurisdiction-stripping provisions of the MCA simply because Plaintiff had erroneously been determined to be an enemy combatant in a prior CSRT. JA 128, Op. at 14. The plain language of the statute, reading all the provisions in harmony with one another, indicates that the relevant determination is the final determination by the United States, in this case the conclusive final judgment and opinion of the district court that Plaintiff was never properly detained. 2. The Provision of the Statute for Judicial Review of CSRT Decisions Indicates That Congress Intended to Allow Other Entities Besides CSRTs to Determine Whether A Person Was Properly Detained. The MCA provided for judicial review, specifically provisions for review by this court. 10 U.S.C. 950(g). Allowing a determination vacated by a district court or by this court to constitute a valid determination of whether a detainee had been properly detained for purposes of the statute would be an absurd result contrary to the statutory scheme. C.f. United States v. Kirby, 74 U.S. 482, 486-87 16

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 33 of 88 (1868) (statutes should be interpreted away from absurd results). The exercise of an alien s right to habeas should not strip that person of the ability to say that their determination was overturned, where the question decided in the habeas proceeding is whether Plaintiff was ever properly detained. The district court erred in finding otherwise. First, the decision was not supported by past precedent; no court had previously considered a case brought by a detainee whose innocence had already been determined. The principal case upon which the district court relied (JA 126 27, Op. at 12-13 & n. 11), In re: Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp. 2d 119 (D.D.C. 2010) ( Guantanamo Petitioners ), erred in reaching a different conclusion. In that case, petitioners had been transferred or released abroad before the court could rule on their habeas petitions. Id. at 124. In deciding that their habeas petitions were now moot, the court found that petitioners argument that they needed a habeas decision in order to bring an action for damages was too speculative because the question of the proper interpretation of the MCA had not previously been decided. Id. at 136 37. Guantanamo Petitioners in no way constitutes a ruling on whether a person who has, in fact, been determined by a court to have been unlawfully detained is barred by the MCA from bringing an action for damages. 17

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 34 of 88 There is no evidence in the statute that a United States court is excluded from the definition of United States. In Guantanamo Petitioners, that court (in dicta, finding any claim to receive damages after habeas speculative in the absence of other authority) drew the conclusion that because the jurisdiction-stripping provision first referred to a court, justice, or judge and then to the United States as a whole, the United States must not include the court, justice, or judge. 700 F. Supp. 2d at 136. The court s holding in that case is unpersuasive. The plain reading of the statute is that court, justice, or judge refers directly to the federal judicial branch because the statute is intended to bar properly detained.... enemy combatant[s] from filing civil suits in the federal judiciary system. It would have been nonsensical and overbroad to say United States instead of court, justice or judge in the first part of 2241(e)(2). The statute does not limit which branch of government is to make the determination on whether the person in question was properly detained. The judicial branch is part of the federal government and encompassed by the phrase United States, meaning the judicial branch has the power to determine whether a person was properly detained as an enemy combatant. Once the judicial branch has made the determination that a person has been improperly detained, the MCA s jurisdictional bar no longer applies to that person s claims. 18

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 35 of 88 3. A Finding That Plaintiff Falls Outside the MCA s Jurisdictional Bar Would Be in Accordance with Past Precedent. When the habeas court reviewed Plaintiff s petition for habeas corpus, it determined that he was not properly detained as an enemy combatant. Therefore, even if 28 U.S.C. 2241(e)(2) is still in effect, it does not apply to Plaintiff and the court s conclusion in Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 110 (D.D.C. 2010) aff'd on other grounds sub nom. Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012), has no bearing on this case. In Al-Zahrani v. Rumsfeld, the court found that the MCA barred jurisdiction of the court over claims by aliens who ha[ve] been determined to be enemy combatants by the United States. Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 110 (D.D.C. 2010) aff'd on other grounds sub nom. Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012); see also 28 U.S.C. 2241(e)(2). The district court found that because the CSRT determined that the deceased detainees were enemy combatants, the jurisdiction-stripping provision applied to them. Since the individuals were not able to conclude their habeas proceedings before they died, the United States never revised its determination in their case after the CSRT decision. In this case, however, Plaintiff s habeas petition was successful, and the habeas court determined that he had never been properly detained. This case is thus very different from the facts presented in Al-Zahrani. Any other ruling would 19

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 36 of 88 mean that an initial erroneous or biased CSRT ruling would forever strip the claimant of important constitutional and statutory rights even where his detention was found to be unjustified by a federal court. Similarly, none of the other cases cited by the district court to justify the absence of jurisdiction under the MCA, JA 113 15 (Op. at 13 15 n. 11, 12), involved detainees who had been found by a court to never have been properly detained as enemy combatants. See 28 U.S.C. 2241(e)(2); Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011); Al-Adahi v. Obama, 596 F. Supp. 2d 111, 119 (D.D.C. 2009) (Kessler, J.); Khadr v. Bush, 587 F. Supp. 2d 225,235-36 (D.D.C. 2008) (Bates, J.); In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 314,315-16 (D.D.C. 2008) (Hogan, J.); In re Guantanamo Bay Detainee Litig., 570 F. Supp. 2d 13, 18 (D.D.C. 2008) (Urbina, J.). The habeas court has already found that Plaintiff was not an enemy combatant when detained, unlike in the other cases. Finally, a decision that the phrase has been determined refers to the ultimate determination by any branch of the United States would be in accordance with the Supreme Court s decision in Boumediene v. Bush, 553 U.S. 723, 728 (2008). The Supreme Court held that the CSRT process that Plaintiff faced was riddled with error and was unfair compared to the habeas process. The Boumediene court conducted a detailed review of the CSRTs and found that they 20

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 37 of 88 provided no way for a detainee to find or present evidence to challenge the government s case against him. Boumediene, 553 U.S. at 729. It was the risk of error in the determination of an accused s status the very error the district court cured in Plaintiff s habeas ruling that Boumediene highlighted: Although we make no judgment whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal s finding of fact. This is a risk inherent in any process that in the words of the former Chief Judge of the Court of Appeals, is closed and accusatorial. See Bismullah III, 514 F.3d at 1296 (Ginsburg, C.J., concurring in denial of rehearing en banc). Boumediene, 553 U.S. at 785. It would be inconsistent with Boumediene to hold that courts may only look to CSRT determinations and not to the ultimate disposition of a detainee s case when deciding whether the United States has determined that a detainee was properly detained. In sum, the plain text of the statute dictates that the habeas court decision be considered the relevant determination of whether Plaintiff was properly detained. At the time the statute was passed, Congress included provisions for judicial review, but Congress did not write the jurisdiction-stripping provision to focus solely on CSRTs. A decision in Plaintiff s favor would be consistent with past precedent and in particular with Boumediene. 21

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 38 of 88 B. The MCA is Unconstitutional As Applied to Plaintiff; This Court Should Construe the Statute Away From The Potential Conflict With the Constitution If the district court s construction of 7 of the MCA is correct, the provision is unconstitutional as applied to Plaintiff under both Boumediene v. Bush, 533 U.S. 723 (2008), and long-established constitutional principles of due process. Under this statutory construction, the federal courts would be written out of the federal government, despite the use of broad language in the statute that clearly encompasses any decision by an arm of the United States government. As the District Court s habeas ruling renders the prior CSRT determination legally ineffective, the operative determination of the United States is that Plaintiff is not an enemy combatant. The Court should construe the MCA away from the need to decide this constitutional question by finding that Plaintiff does not fall within the MCA s jurisdictional bar. 1. The MCA is Unconstitutional As Applied to Plaintiff a. The CSRT Process Is an Inadequate Substitute for Due Process, Which Is Required to Properly Determine Enemy Combatant Status. If 7 of the MCA is interpreted to apply to Plaintiff s action, the statute would constitute an unconstitutional denial of Plaintiff s due process rights. The Supreme Court has twice held that the process afforded in the CSRT hearings was 22

USCA Case #12-5017 Document #1414389 Filed: 01/09/2013 Page 39 of 88 insufficient to act as a substitute for a habeas corpus proceeding. See Hamdi, supra, 542 U.S. at 509; Boumediene v. Bush, supra, 553 U.S. at 733. However, instead of correcting the constitutional deficiencies of the CSRTs, Congress has simply attempted to remove the federal courts jurisdiction to pass on them. The Supreme Court struck down this attempt to circumvent its ruling. See Boumediene, supra, 553 U.S. at 733-36 (summarizing history of Guantánamo habeas challenges). In Hamdi, the Court held that in order for the CSRT hearings to be a constitutionally sufficient alternative to a habeas review at least two key elements must be present: notice of the factual basis for [the detainee s] classification [as an enemy combatant], and a fair opportunity to rebut the Government s factual assertions before a neutral decisionmaker. Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2008). In Boumediene, the Court pointed out further deficiencies in the CSRT process including the inability of a detainee to obtain or present exculpatory evidence, lack of access to counsel and the wide admissibility of hearsay evidence into the proceedings. Boumediene, supra, 553 U.S. at 783 84. All of these deficiencies were present in Plaintiff s CSRT hearing. Plaintiff, at the time of his capture, had been imprisoned and tortured by the Taliban and no reliable evidence indicated his membership in Al Qaeda or the Taliban. Nevertheless, the government imprisoned and continued to detain Plaintiff. Al-Ginco, 626 F. Supp. 23