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Hamad v. Gates (amicus brief)

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In this amicus brief, filed in support of a former Guantánamo detainee's request that the Supreme Court review a lower court's dismissal of his case seeking damages for abuse he suffered in detention, CCR argues that the lower courts wrongly decided that Congress has the power to forbid federal courts from even considering such claims by former Guantánamo detainees. The question ultimately has implications that reach far beyond Guantánamo litigation, and concern the separation of powers between Congress and the Judiciary: If Congress has the power to bar all consideration of federal legal questions (arising from statutes, treaties, or the Constitution itself) then vast classes of litigants may equally be at risk of having their claims thrown out of court wholesale by future Congressional actions.


Hamad's petition was docketed by the Supreme Court on March 19, 2014. CCR's amicus brief was filed on April 17, 2014, and the government’s response to the petition was filed (after an extension) on May 19, 2014. The Supreme Court denied certiorari on June 23, 2014.


Adel Hassan Hamad, a former Guantánamo detainee, brought suit against several military and civilian officials, seeking damages for violations of international law and of his Fifth Amendment rights. The district court dismissed Hamad's claims on a variety of grounds. As to all defendants other than former Defense Secretary Gates (who did not contest that he lived within the district), it dismissed for lack of personal jurisdiction (i.e., defendants lacked enough connection to the district where the court is located in Washington state). All claims against Gates under international law were disposed of by allowing the United States to substitute itself under the Westfall Act and dismiss pursuant to sovereign immunity. Finally, the district court dismissed claims for damages directly under the Fifth Amendment to the Constitution (co-called Bivens claims) against Gates by determining that Hamad had failed to show that the Defense Secretary was personal involved in his prolonged arbitrary detention.

The Court of Appeals, however, affirmed the dismissals on a different ground, finding that Congress had stripped away jurisdiction over all of Hamad's claims. This jurisdictional holding was based on application of Section 7(b) of the Military Commissions Act of 2006 (MCA), codified at 28 U.S.C. § 2242(e)(2), which states as follows:

Except [for challenges to CSRT determinations under 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.

CCR’s amicus brief argues that the Court of Appeals erred in holding that Congress has the power to deprive the federal courts of jurisdiction to decide these issues. The text, structure, and history of Article III make clear that there must always exist some form of federal judicial review over federal questions, whether by means of original jurisdiction in lower federal courts (as has existed by statute since 1875) or appellate jurisdiction (as has existed in the Supreme Court since the first Judiciary Act over claims originating in state courts of general jurisdiction). By purporting to eliminate all jurisdiction—whether original or appellate—over certain categories of federal questions, MCA Sec. 7(b) violates this constitutional mandate and is void.

CCR's amicus brief argued that the Court of Appeals needlessly reached this constitutional question, so fraught with fundamental implications for the separation of powers. The Supreme Court has in the past made clear that federal courts are free to dispose of cases on "threshold questions" without first deciding that "the parties present an Article III case or controversy." The Court of Appeals could have addressed questions of personal involvement and qualified immunity prior to reaching the question of whether Sec. 7(b) validly strips jurisdiction over Hamad's claims.