Tuesday, February 21, 2012
The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts. The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths. They have no judicial remedy in U.S. courts for any violation.
Section 7 of the MCA reads as follows:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], 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.
28 U.S.C. Secs. 2241(e)(1) and (2).
The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution.
The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause. The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause). So subsection (2) is still valid; and it bars the fathers' suit here.
The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right. The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional." Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).
Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.