Metropolitan News-Enterprise


Tuesday, October 8, 2013


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Panel Throws Out Suit by Sudanese Man Held at Guantanamo

Ninth Circuit Says Adel Hamad’s Claims Against Government and Ex-Secretary Gates Barred by Military Commissions Act




A Sudanese national who claims he spent five years in captivity in Pakistan and Afghanistan and at Guantanamo Bay, and that he was mistreated by the U.S. government despite his innocence of terrorism accusations, cannot sue in American courts, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel, in an opinion by Judge Sandra Ikuta, vacated a district judge’s ruling dismissing Adel Hassan Hamad’s suit on grounds of sovereign immunity and failure to state a cause of action, and ordered that it be dismissed for lack of subject-matter jurisdiction.

Hamad, a Sudanese national who allegedly worked for a Saudi-based medical charity, claims that he was detained in Pakistan in 2002 at the direction of “an unknown American official,” then subsequently transferred to Bagram Air Force Base in Afghanistan and then to Guantanamo.

New Tribunals

In 2005, he was designated by one of the newly established “combatant status review tribunals” as an enemy combatant, defined as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” An administrative review board subsequently found that he was a continuing threat to the United States and its allies, but was eligible for transfer to Sudan with conditions to be agreed upon between the two countries.

In 2007, the government completed negotiations regarding the release of Hamad and another Sudanese national, and both were repatriated.

In April 2010, Hamad, who is currently about 55 years old, sued 22 military and civilian officials in the U.S. District Court for the Western District of Washington. The defendants included then-Secretary of Defense Robert Gates and his predecessor, Donald Rumsfeld.

The complaint asserted violations of domestic and international law, including prolonged, arbitrary detention; cruel, inhuman, or degrading treatment; torture; targeting of a civilian; denial of due process; and forced disappearance. He alleged, among other things, that his Fifth Amendment due process rights were violated by the tribunal’s erroneous determination that he was an enemy combatant and by his continued detention after the review board said he could be transferred.

Some Claims Dismissed

Chief District Judge Barbara Pechman dismissed all defendants but Gates for lack of personal jurisdiction, and ruled that sovereign immunity barred all but the Fifth Amendment claim, as to which she rejected the government’s jurisdictional arguments but dismissed on the merits. She concluded that the allegations of Gates’ personal involvement in the alleged violations were implausible.

Ikuta, however, said the district judge should have dismissed for lack of jurisdiction under 28 U.S.C. § 2241(e)(2), as amended by the Military Commissions Act of 2006.

The provision reads:

“Except as provided in paragraphs (2) and (3) of section 1005(e) 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.”

The enumerated exceptions provide the D.C. Circuit jurisdiction over a narrow class of challenges by enemy combatants, but do not allow habeas corpus review or suits for damages.

Prior Decision

Ikuta acknowledged that the Supreme Court, in Boumediene v. Bush, 553 U.S. 723 (2008), found another provision of the act, 28 U.S.C. § 2241(e)(1), unconstitutional to the extent it purported to strip the federal courts of jurisdiction to grant writs of habeas corpus. But she rejected Hamad’s argument that § 2241(e)(2) was either subsumed within the high court’s ruling, or is not severable from the provision struck down by the Supreme Court.

Nothing in Boumediene, in the text of the Military Commissions Act, or in the high court’s severability jurisprudence supports those arguments, Ikuta said.

The case was argued on appeal by Venice attorney Paul Hoffman of Schonbrun De Simone Seplow Harris Hoffman & Harrison LLP, and by Gwynne Skinner of Williamette University College of Law in Salem, Ore.; for the plaintiff and by Sydney Foster of the Justice Department for the government.

The case is Hamad v. Gates, 12-35395.


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