Mohammed Jawad v. Robert Gates, et al

Filing

OPINION [1630003] filed (Pages: 12) for the Court by Judge Griffith. [15-5250]

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2016

Decided August 12, 2016
No. 15-5250

MOHAMMED JAWAD, ALSO KNOWN AS SAKI BACHA,
APPELLANT
v.
ROBERT M. GATES, FORMER SECRETARY OF DEFENSE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00811)

Eric S. Montalvo argued the cause and filed the briefs for
appellant.
Steven D. Schwinn was on the brief for amicus curiae
The John Marshall Law School International Human Rights
Clinic in support of plaintiff-appellant.
Lewis Yelin, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Matthew M. Collette, Attorney.
Before: GRIFFITH, SRINIVASAN, and WILKINS, Circuit
Judges.

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Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: The United States detained
Mohammed Jawad at Guantanamo Bay Naval Base for more
than six years until he was released and returned to his native
Afghanistan in 2009. He has filed a damages action against
the United States and various federal officials, alleging that
they subjected him to torture while he was in their custody.
We affirm the district court’s dismissal of Jawad’s complaint
because the federal courts lack jurisdiction to hear his claims.
I
Because we are reviewing the dismissal of Jawad’s
complaint, we take his allegations as true and recite the facts
in the light most favorable to him. See Klay v. Panetta, 758
F.3d 369, 371 (D.C. Cir. 2014).
In December 2002, when Jawad was about 15 years old,
Afghan authorities captured him following a grenade attack
that badly injured two U.S. soldiers and their Afghan
interpreter. The Afghan officials subjected Jawad to cruel and
abusive treatment and forced him to sign a prepared
confession. They gave the coerced confession to American
military authorities in Afghanistan, who detained Jawad.
While in their custody, Jawad was abused by American
military authorities. Under intense and prolonged questioning,
Jawad initially denied responsibility for the grenade attack,
but later he confessed. Later still, he recanted his confession.
In February 2003, Jawad was transferred to Guantanamo
Bay Naval Base, where the cruel treatment continued. Despite
his age, he was not housed in a facility for juveniles. He spent
the majority of his first year at Guantanamo “in social,

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physical, and linguistic isolation,” and even attempted suicide.
For two weeks in May 2004, Jawad was “repeatedly
mov[ed] . . . from one cell to another in quick intervals
throughout the night to disrupt sleep cycles, on average every
three hours.” J.A. 30-31. Over the course of his detention at
Guantanamo, he was interrogated more than 60 times, even
after the government decided he had no useful intelligence.
These interrogations included “various forms of cruel
treatment such as excessive cold, loud noise, beatings,
pepper-spray, and being shackled for prolonged periods.” J.A.
29.
Pursuant to the Authorization for Use of Military Force
(AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), the
President may “detain enemy combatants ‘for the duration of
the particular conflict in which they were captured.”’ Al Janko
v. Gates, 741 F.3d 136, 138 (D.C. Cir. 2014) (quoting Hamdi
v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion)). To
determine whether an individual is properly detained as an
enemy combatant, wholly apart from whether that person can
be punished for his alleged crimes by a military commission,
each detainee appears before a Combatant Status Review
Tribunal (CSRT). See id. In 2004, a CSRT determined that
Jawad was properly detained as an enemy combatant. In 2005
and again in 2006, Administrative Review Boards (ARBs)
concluded that there was sufficient reason to continue his
detention. In rendering its decision, each tribunal “relied
heavily” on Jawad’s “alleged confessions.” J.A. 33.
In 2007, the United States charged Jawad under the
Military Commissions Act (MCA) of 2006 with three counts
of attempted murder in violation of the law of war and three
counts of intentionally causing serious bodily injury. The
latter three counts were eventually dismissed as lesser
included offenses. In September 2008, after prosecutors

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expressed their intent to use Jawad’s confessions, his counsel
moved to suppress them as the product of torture. In
November 2008, the military commission judge agreed and
suppressed the confessions. The judge also found that the
repeated movement of Jawad at night throughout May 2004
was “abusive conduct and cruel and inhuman treatment.” J.A.
36.
While a prisoner at Guantanamo, Jawad challenged his
continued detention in 2005 with a petition for a writ of
habeas corpus in district court. He amended his habeas
petition in 2009 and asked the district court to do what the
military commission judge had done: suppress his previous
confessions on the ground that they were the result of
coercion and torture. The United States did not oppose the
motion, and the district court granted it as conceded. In July
2009, the United States filed a notice in the district court,
explaining that “[i]n light of the evidence that remains in the
record following respondents’ decision not to contest
petitioner’s [m]otion [to suppress], respondents will no longer
treat petitioner as detainable under the [AUMF].” Notice of
the United States, Al Halmandy v. Obama, No. 05-cv-2385,
D.E. 311 (D.D.C. July 24, 2009), J.A. 81. The district court
granted Jawad’s habeas petition on July 30, 2009, and the
United States repatriated Jawad to Afghanistan.
In 2014, Jawad filed a complaint in district court seeking
damages from the United States and various federal officials
arising out of his alleged mistreatment while in detention. His
complaint sets forth six causes of action. The first four invoke
the Federal Tort Claims Act and the Alien Tort Claims Act,
alleging that Jawad was subjected to torture and inhumane
treatment at the hands of his American captors in violation of
the law of nations, the Third and Fourth Geneva Conventions,
Articles 6 and 7 of the Optional Protocol to the Convention on

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the Rights of the Child on the Involvement of Children in
Armed Conflict, and the Torture Victim Protection Act. The
last two claims assert Fifth and Eighth Amendment violations
actionable under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The district court dismissed Jawad’s complaint, holding
that section 7(a) of the 2006 MCA bars the court from hearing
any claims arising out of Jawad’s detention. Jawad timely
appealed, and we have jurisdiction under 28 U.S.C. § 1291.
II
We review de novo the district court’s decision that it
lacked jurisdiction. See Al Janko, 741 F.3d at 139.
The relevant portion of section 7(a) of the 2006 MCA
states:
[N]o court, justice, or judge shall have jurisdiction to hear
or consider any [non-habeas] 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. § 2241(e)(2). By its clear terms, this provision
strips federal courts of jurisdiction to hear most claims against
the United States arising out of the detention of aliens like
Jawad captured during the United States’ invasion of
Afghanistan in response to the attacks of September 11, 2001.
Jawad acknowledges that he is an “alien” and that his lawsuit
is an “action against the United States or its agents relating

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to . . . [his] detention, . . . treatment, . . . or conditions of
confinement.” Id. But he asserts that his lawsuit escapes the
statute’s jurisdictional bar because he has not “been
determined by the United States to have been properly
detained as an enemy combatant.” Id.
Jawad concedes that a CSRT found that he was an
“enemy combatant.” J.A. 33. We have held that such a finding
by a CSRT fully satisfies the section 7(a) requirement that an
alien be determined by the United States to have been
properly detained as an enemy combatant. Al Janko, 741 F.3d
at 144-45 (citing Al-Zahrani v. Rodriguez, 669 F.3d 315, 317,
319 (D.C. Cir. 2012) and 28 U.S.C. § 2241(e)(2)). But Jawad
offers several reasons why the CSRT finding does not do so
here. Each of them fails.
Jawad first points to the government notice, filed in the
habeas action, that it would “no longer treat” Jawad as
“detainable.” This statement, Jawad contends, was a
“determination [that] he was not properly detained.”
Appellant’s Br. 9 (emphasis added). According to Jawad, with
this language, the government announced that it had rescinded
the previous CSRT and ARB determinations. As a result, he
argues, section 7(a)’s bar does not extend to him.
We assume that Jawad is right, as a matter of law, that
the government could override a prior determination that an
alien had been “properly detained” by issuing a new
determination to the contrary in habeas litigation. But, as a
matter of fact, the government did not do so here. It never said
that Jawad was not properly detained, only that the United
States would no longer treat him as such. Notice of the United
States, Al Halmandy v. Obama, No. 05-cv-2385 (D.D.C. July
24, 2009), J.A. 81-82 (describing its position as “a decision
not to contest the writ”). The government’s statement says

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nothing about the jurisdictional question raised by section
7(a): whether the United States had determined that Jawad
was properly detained as an enemy combatant. See Al Janko,
741 F.3d at 144. That determination had already been made in
Jawad’s CSRT and ARB proceedings, and nothing in the
government’s habeas filing contradicted those earlier
conclusions. This case would be much different and a closer
call had the government conceded before the district court
that Jawad had never been properly detained. But that is not
the case here.
Jawad also argues that the initial CSRT determination
that he was properly detained was “illegal and void” because
“his capture, torture, and detention[] violated domestic and
international law concerning treatment of juveniles accused of
a crime.” Appellant’s Br. 20-21; see id. at 15-20 (citing the
Optional Protocol to the Convention on the Rights of the
Child on the Involvement of Children in Armed Conflict, S.
TREATY DOC. NO. 106-37A (ratified June 18, 2002); Uniform
Code of Military Justice, 10 U.S.C. § 948b(c) (2006); and
Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq.).
The United States asserts that Jawad forfeited or waived this
argument by failing to raise it before the district court. But the
United States takes too narrow a view of Jawad’s position
before the district court. There, he argued that section 7(a) did
not divest the court of jurisdiction because his juvenile status
“taint[ed]” the CSRT determination and the United States
“should never have taken custody of [Jawad]” due to his
juvenile status. Mem. Opposing Mot. to Dismiss at 25-26,
Jawad v. Gates, No. 14-cv-00811 (D.D.C. Apr. 20, 2015).
This was adequate to preserve the argument on appeal.
On the merits, we conclude that even if we were to
decide that an allegation that a CSRT was “illegal and void”
bears on whether section 7(a)’s jurisdictional bar applies—a

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conclusion we need not, and do not, reach—Jawad’s
argument fails for other reasons. Jawad has not shown that his
CSRT determination ran afoul of any domestic or
international law. He does not cite any provision in the
Uniform Code of Military Justice or other domestic law that
prohibits the detention of juvenile enemy combatants pursuant
to the AUMF, much less explain how violations of any such
provisions would “void” the CSRT’s determination. Nor does
Jawad show how any alleged failure of the United States to
comply with its treaty obligations would do so. In particular,
Jawad relies on the Optional Protocol to the Convention on
the Rights of the Child on the Involvement of Children in
Armed Conflict, which the United States ratified in 2002.
That treaty requires signatories to “take all feasible measures
to ensure” that child soldiers “recruited or used in hostilities
contrary to this Protocol are demobilized or otherwise
released from service” and to provide, “when necessary, . . .
all appropriate assistance for their physical and psychological
recovery and their social reintegration.” Optional Protocol,
art. 6(3). Jawad argues that the United States violated the
Protocol’s requirement to provide rehabilitation and
reintegration to detained juveniles. But Jawad never explains
how these provisions would render his initial detention
improper under the treaty, let alone why a violation of the
treaty would “void” the CSRT’s determination.
Jawad argues as well that his juvenile status makes the
jurisdictional bar of section 7(a) wholly inapplicable to his
case because the “MCA lacks jurisdiction over minors.”
Appellant’s Br. 16. Although it is not altogether clear what
Jawad means by this, we understand him to be arguing that no
provision of the MCA can apply to juveniles, leaving him free
to bring his damages action. According to Jawad, it is “wellestablished that military tribunals lack jurisdiction over
minors below the age of consent.” Id. at 17 (citing United

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States v. Blanton, 23 C.M.R. 128 (C.M.A. 1957) (holding that
the “enlistment of a person under the statutory age is void so
as to preclude trial by court-martial for an offense committed
by him while still under such age”)). Similarly, Jawad points
to the Federal Juvenile Delinquency Act, which provides
certain procedures for the prosecution and detention of
juveniles in federal cases, and contends that the MCA lacks
those protections. See 18 U.S.C. § 5031 et seq. But Jawad
again sidesteps the relevant question. Nothing in those
sources of law bears on whether Congress, through section
7(a), barred courts from hearing damages actions brought by
juveniles determined to be properly detained as enemy
combatants. The court-martial cases deal with whether
military courts have jurisdiction to try juveniles. That has no
relevance here because Jawad is not being tried by any
military court. The Federal Juvenile Delinquency Act is
equally immaterial. Even if its procedures for detaining and
prosecuting juveniles were somehow applicable to detainees
like Jawad, any argument based on such procedures relates
only to Jawad’s merits claim about his treatment in detention.
The Act is silent as to the question at issue here: whether
juveniles detained under the AUMF are barred from filing
damages actions in federal court.
Jawad next argues that section 7(a) is inapplicable here
because the United States never determined that he was an
unlawful enemy combatant. Although Jawad agrees that his
CSRT and ARB determinations found him to be an enemy
combatant, he maintains that section 7(a) should apply only to
detainees who are determined to be unlawful enemy
combatants because the 2006 MCA provides that military
commissions have jurisdiction only over such combatants. 10
U.S.C. § 948d(a) (2006). According to Jawad, section 7(a)
“may only bar claims by individuals over which the MCA has

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jurisdiction,” which is limited to unlawful enemy combatants.
Appellant’s Br. 25.
But the plain language of section 7(a) does not require a
finding of unlawfulness. Rather, the jurisdictional bar applies
where a detainee has been determined to be an “enemy
combatant.” 28 U.S.C. § 2241(e)(2). We will not “read[] a
phrase into the statute when Congress has left it out.” Keene
Corp. v. United States, 508 U.S. 200, 208 (1993). Where, as
here, the statutory text is clear, “[t]he plain meaning of
legislation should be conclusive” unless it “compels an odd
result.” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1088 (D.C.
Cir. 1996) (internal quotation marks omitted).
Nothing odd results from applying section 7(a)’s
jurisdictional bar to suits by detainees who have been
determined to be enemy combatants, but not only unlawful
enemy combatants. To be sure, Congress conditioned the
jurisdiction of military commissions on unlawful-enemycombatant status in the 2006 MCA, 10 U.S.C. § 948d(a).
Section 7(a), however, is not linked to the MCA’s grant of
jurisdiction to military commissions. The bar is instead tied to
the AUMF’s detention authority, which allows “the President
to detain enemy combatants”—not solely unlawful ones. Ali
v. Obama, 736 F.3d 542, 544 (D.C. Cir. 2013). We affirmed
this understanding in Al Janko, explaining that section 7(a)
applies where the United States has made a determination
“that the detainee meets the AUMF’s criteria for enemycombatant status.” 741 F.3d at 144 (emphasis added).
Because section 7(a) deals with the jurisdiction of federal
courts over lawsuits by individuals determined to have been
properly detained, section 7(a) understandably applies to
enemy combatants—the category of combatants who may be
properly detained under the AUMF—and is not limited to
unlawful enemy combatants. In fact, Congress’s use of

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“unlawful” in the sections of the 2006 MCA that deal with
military-commission jurisdiction, but not in section 7(a),
further works against reading that term into the jurisdictional
bar. Russello v. United States, 464 U.S. 16, 23 (1983)
(“[W]here Congress includes particular language in one
section of a statute but omits it in another . . . , it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.”).
Finally, Jawad raises several meritless constitutional
claims. First, he contends that he is entitled to a damages
remedy for “unconstitutional trespasses by the United States.”
Appellant’s Br. 33. Our precedent, however, forecloses this
position. We have held that monetary remedies are not
constitutionally required “even in cases such as the present
one, where damages are the sole remedy by which the rights
of plaintiffs . . . might be vindicated.” Al-Zahrani, 669 F.3d at
320. Second, Jawad maintains that section 7(a) is
unconstitutional on its face because its “broad elimination of
jurisdiction” is “inconsistent with the plain language of
Article III of the Constitution.” Appellant’s Br. 29-30. To
succeed on a facial challenge, Jawad must show “that no set
of circumstances exists under which [section 7(a)] would be
valid, or that the statute lacks any plainly legitimate sweep.”
United States v. Stevens, 559 U.S. 460, 472 (2010) (internal
citations and quotation marks omitted). But our precedent
again forecloses Jawad’s argument. As we have held, section
7(a) can constitutionally be applied to “any [non-habeas]
detention-related claims, whether statutory or constitutional,
brought by an alien detained by the United States and
determined to have been properly detained as an enemy
combatant.” Al Janko, 741 F.3d at 146.
Jawad also urges that section 7(a) is a legislative act
inflicting punishment without trial in violation of the Bill of

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Attainder Clause, U.S. CONST. art. I, § 9, cl. 3. See United
States v. Lovett, 328 U.S. 303, 315 (1946). A law is an
unconstitutional bill of attainder if it “applies with specificity”
to a person or class and “imposes punishment.” BellSouth
Corp. v. FCC, 162 F.3d 678, 683 (D.C. Cir. 1998); Anthony
Dick, Note, The Substance of Punishment Under the Bill of
Attainder Clause, 63 STAN. L. REV. 1177 (2011). Even
assuming that section 7(a) meets the specificity requirement
because it applies only to enemy combatants, Jawad advances
no argument that the jurisdictional bar is a form of
punishment. We will “not consider ‘asserted but unanalyzed’
arguments.” Anna Jaques Hosp. v. Sebelius, 583 F.3d 1, 7
(D.C. Cir. 2009) (quoting Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983)) (“[A]ppellate courts do not sit as selfdirected boards of legal inquiry and research, but essentially
as arbiters of legal questions presented and argued by the
parties before them.” (quoting Carducci, 714 F.2d at 177)).
And even if we did consider Jawad’s argument, “only the
clearest proof could suffice to establish the unconstitutionality
of a statute” on Bill of Attainder Clause grounds, Communist
Party of the U.S. v. Subversive Activities Control Bd., 367
U.S. 1, 83 (1961), and his failure to provide such proof dooms
his claim. See also Hamad v. Gates, 732 F.3d 990, 1004 (9th
Cir. 2013) (concluding that section 7(a) does not qualify as a
bill of attainder); Ameur v. Gates, 759 F.3d 317, 329 (4th Cir.
2014) (same).
III
We affirm the district court’s dismissal of Jawad’s
complaint for lack of subject matter jurisdiction.

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