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Guantanamo Case Kicked Out of Civilian Court

(CN) - A federal civilian court cannot consider claims by a former Guantanamo Bay detainee that he was disappeared, tortured, degraded and denied due process, the 9th Circuit ruled Monday.

Adel Hassan Hamad, a citizen of Sudan who was released from Guantanamo Bay in 2007 and returned to his native country, filed a civil lawsuit in Seattle District Court in 2010 seeking damages from former U.S. Secretary of Defense Robert Gates and dozens of other named and unnamed federal officials.

Hamad alleged he was owed compensation for, among other things, prolonged arbitrary detention, cruel, inhuman, or degrading treatment, torture, targeting of a civilian, denial of due process and forced disappearance, as well as violations of his Fifth Amendment due process rights.

Hamad says he was arrested in 2002 in Pakistan by local security forces beholden to an "unknown American official." He was then transferred to the custody of the U.S. military custody at Bagram Airfield in Afghanistan and finally taken to Guantanamo Bay.

A Department of Defense Combatant Status Review Tribunal labeled Hamad an "enemy combatant" in 2005, and a review panel later found that he continued to be a threat to the U.S. Nonetheless, Hamad was released and sent to Sudan in 2007, according to the ruling.

U.S. District Judge Marsha Pechman in Seattle dismissed most of Hamad's civil claims based on sovereign immunity and lack of personal jurisdiction. The court found that it had jurisdiction over the Fifth Amendment claim against Gates, but dismissed it anyway because Hamad had failed to show that Gates personally violated his rights.

In a unanimous ruling Monday, the 9th Circuit vacated the lower court's ruling and found that it had lacked jurisdiction over all of Hamad's claims. The federal appeals court also refused to consider Hamad's other issues on appeal for lack of jurisdiction.

The court found that a section of federal law related to detaining enemy combatants - 28 U.S.C. § 2241(e)(2) - had "deprived the district court of subject-matter jurisdiction over Hamad's claims."

That section of the law says that "no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, 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."

Hamad argued that § 2241(e)(2) was no longer valid after the U.S. Supreme Court's 2008 ruling in Boumediene v. Bush, which established habeas corpus rights for Guantanamo Bay detainees and enemy combatants.

However, the three-judge appeals panel found that, contrary to Hamad's contention, Boumediene v. Bush was limited to the habeas portion of the § 2241(e) and did not invalidate the entire law. The panel also rejected Hamad's claim that, even if it remained valid law, § 2241(e)(2) is still unconstitutional as applied to him.

"In this case, Congress's decision in § 2241(e)(2) to preclude only alien detainees captured as part of the war on terror from bringing damages actions easily passes rational basis review," wrote Judge Sandra Ikuta for the panel. "Congress's decisions with respect to these detainees are at the core of Congress's authority with respect to 'the conduct of foreign relations, the war power, and the maintenance of a republican form of government,' and thus are entitled to the most deferential judicial review. Moreover, Congress's decision to focus on alien detainees, rather than citizens, is neither arbitrary nor irrational; it is clearly intended 'to serve Congress' legitimate foreign policy concerns,' by ensuring that members of the armed forces are not unduly chilled in conducting the war on terror by concerns about foreign nationals targeting them with damages claims."

The panel vacated the district court's previous ruling and sent the case back to Seattle with orders to dismiss the Hamad's lawsuit for lack of jurisdiction.

Hamad's attorney, Gwynne Skinner of the Williamette University College of Law in Salem, Ore., said Monday that she and her client are "exploring an appeal."

"We are disappointed that the Court did not reach the merits of this case, but instead found it did not have jurisdiction," she said. "We continue to believe that Congress' attempt to prevent the courts from hearing these claims of Constitutional and international law violations is itself unconstitutional and morally unjust."

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