[00:00:01] Speaker 01: case number 15 of 5250. [00:00:03] Speaker 01: Mohamed Jawad, also known as Saqib Bacha, appellant versus Robert M. Gates, former Secretary of Defense at L. Mr. Matalo, could be appellant. [00:00:12] Speaker 01: Mr. Yellen, could be appellant. [00:00:35] Speaker 04: Morning. [00:00:36] Speaker 05: Morning, Your Honor. [00:00:38] Speaker 05: Morning. [00:00:38] Speaker 05: My name is Eric Montalvo. [00:00:39] Speaker 05: I proudly represent Mohamed Jouad in this matter. [00:00:42] Speaker 05: I respectfully request two minutes rebuttal time. [00:00:45] Speaker 05: May it please the Court. [00:00:47] Speaker 05: In February of 2004, the Freak Require program was an authorized interrogation technique. [00:00:54] Speaker 05: It was authorized for a four-day period of time. [00:00:56] Speaker 05: It required you to get permission from the JTF commander, who was a flag officer, a general officer. [00:01:03] Speaker 05: In March of 2004, Brigadier General Hood assumed command and ordered that the frequent flyer program would be discontinued, no longer utilized. [00:01:15] Speaker 05: In May of 2004, personnel engaged in the frequent flyer program for 14 consecutive days. [00:01:26] Speaker 05: They did not obtain [00:01:29] Speaker 05: permission from the J. T. F. Commander as the military judge ruled in the matter, which is contained in the joint appendix. [00:01:37] Speaker 05: There was no legitimate interrogation purpose for this condo. [00:01:41] Speaker 05: If we look at the definition of torture in the M. C. A. Under subsection six, [00:01:51] Speaker 05: It clearly delineates what torture is and the conduct associated with this particular incident. [00:01:57] Speaker 05: This is the distinguishing factor in this particular case. [00:02:02] Speaker 05: Moving into the MCA, the first issue is there are two types of unlawful [00:02:11] Speaker 05: I apologize. [00:02:13] Speaker 05: There are two definitions of enemy combat. [00:02:16] Speaker 04: Isn't there something that's more preliminary to all this? [00:02:19] Speaker 04: Isn't there a jurisdictional bar that you have to [00:02:22] Speaker 04: Yes, sir. [00:02:22] Speaker 04: To leap over. [00:02:23] Speaker 04: Could you address that issue? [00:02:24] Speaker 04: Yes, sir. [00:02:25] Speaker 05: So speaking to, and that's where I was headed, Your Honor. [00:02:27] Speaker 04: Okay, sorry. [00:02:27] Speaker 05: So speaking first to 948 Delta. [00:02:31] Speaker 05: And so 948 Delta is the jurisdiction of the Military Commission. [00:02:34] Speaker 05: So the applicability of the MCA to Mohammed Jawad. [00:02:38] Speaker 05: So before we get to the back of the... How about our jurisdiction? [00:02:42] Speaker 04: How about if we deal with our jurisdiction first? [00:02:45] Speaker 05: Yes, sir. [00:02:45] Speaker 05: But to determine if this court has jurisdiction, then we have to determine if these are the rules that we're playing by for Mohammed's rule. [00:02:55] Speaker 04: What I'd like you to address is 2241E2, which bars these types of claims, quote, if the detainee has been determined by the United States who have been properly detained as an enemy combatant or is awaiting such determination. [00:03:10] Speaker 04: Now, wasn't there a C-cert held here at which it was determined [00:03:15] Speaker 04: that Mr. Jawad was an enemy combatant. [00:03:20] Speaker 04: That took place, right? [00:03:21] Speaker 05: Viewing the issue in this case, Your Honor, and looking at enemy combatants defined in this MCA and looking at the different words around this particular statute, torture is considered prohibited conduct. [00:03:33] Speaker 05: And so when we're looking at the enemy combatant, [00:03:37] Speaker 05: provision, there are two definitions of enemy combatant. [00:03:40] Speaker 05: One of them is lawful, the other one is unlawful. [00:03:42] Speaker 04: Well, let me ask you a question. [00:03:44] Speaker 04: Wasn't there a Caesar determination that Mr. Joua was properly detained as an enemy combatant? [00:03:51] Speaker 05: If we assume for purposes of this discussion that the CSRT in 2004 was a properly convened CSRT and would sustain under this regulation, then the court could potentially construe that that is the case. [00:04:06] Speaker 05: But it's our position that that was not a properly construed CSRT. [00:04:10] Speaker 05: It was not based in facts. [00:04:12] Speaker 05: If we look at, you know, Mohammed Jawad was never charged with perfidy. [00:04:15] Speaker 05: He was never charged with association with al-Qaeda. [00:04:17] Speaker 05: He was never charged with association with Taliban. [00:04:19] Speaker 05: He was never charged with material terrorism support. [00:04:23] Speaker 05: So any determination, he was simply charged, allegedly charged. [00:04:27] Speaker 05: Well, he was charged, allegedly throwing a grenade. [00:04:31] Speaker 05: So where in the law of war do we get to an unlawful determination? [00:04:37] Speaker 00: But why are you focusing on unlawful? [00:04:39] Speaker 00: Because I think that's the question. [00:04:40] Speaker 00: Because the definitions you're dealing with in the statute, not on the jurisdictional statute, but in the 10 USC provisions, [00:04:47] Speaker 00: You're focused on unlawful enemy combatants. [00:04:50] Speaker 00: And unlawful enemy combatants are germane to military commission jurisdiction. [00:04:55] Speaker 00: So I understand that because military commission jurisdiction may turn on the unlawful state of an enemy combatancy. [00:05:02] Speaker 00: But for purposes of this jurisdictional provision, enemy combatancy period seems to be the operative question for purposes of our jurisdiction. [00:05:11] Speaker 05: Yes, Your Honor. [00:05:12] Speaker 05: So there are two pieces in the [00:05:15] Speaker 05: the enemy combatant. [00:05:16] Speaker 05: So as the statute defines, it's either lawful or unlawful. [00:05:20] Speaker 05: If he's considered lawful, then that would move him into the Uniform Code of Military Justice. [00:05:25] Speaker 05: So we're under a different set of rules if he was determined to be lawful. [00:05:29] Speaker 05: And so under the military rules and the Uniform Code of Military Justice, if you look to RCM 202, [00:05:34] Speaker 05: If he's under 17, they don't even have jurisdiction to even prosecute him. [00:05:38] Speaker 00: But Uniform Code of Military Justice, I mean, that's for a corpse marshal and provisions like that and proceedings like that. [00:05:46] Speaker 00: But what we're talking about is just whether an enemy soldier has been determined to be such, to be an enemy combatant. [00:05:54] Speaker 00: And as Judge Griffith has pointed out, [00:05:58] Speaker 00: the jurisdictional provision that pertains to us, 28 U.S.C. [00:06:00] Speaker 00: 2241 E2, turns on that determination of just enemy combatancy period, not unlawful enemy combatancy. [00:06:08] Speaker 05: So if you look under the provision, it says [00:06:11] Speaker 05: It also contemplates a prospective determination. [00:06:14] Speaker 05: And as we know from the case, in this case, there wasn't a determination in accordance with the MCA 2006. [00:06:23] Speaker 05: What subsequently happened was they did an AUMF determination and did determine him not to be detainable. [00:06:30] Speaker 04: So in that case... That was after three prior determinations that he was, right? [00:06:36] Speaker 04: We had to see certain that the two administrative review boards all said, [00:06:41] Speaker 04: he's an enemy combatant. [00:06:43] Speaker 04: And then later in the litigation strategy, we'll ask the government what was going on with that. [00:06:49] Speaker 04: They say we no longer treat him as if he was detainable. [00:06:53] Speaker 04: But what we have in front of us is three determinations by the executive [00:06:57] Speaker 04: that he was detainable. [00:06:59] Speaker 04: And under our precedent, it seems like that's a bar. [00:07:03] Speaker 04: Under JANCO, it doesn't even have to be properly determined. [00:07:07] Speaker 04: They could get it wrong. [00:07:09] Speaker 04: But as long as they've made that determination, Congress has barred us from hearing this type of case. [00:07:17] Speaker 05: In terms of the determination, looking at the subsection, [00:07:21] Speaker 05: It talks about, and in JANCO, it talks about lawful types of activity. [00:07:26] Speaker 05: It contemplates that a frequent flyer program was a proper use of interrogation technique, conditions of confinement, that, you know, rations or, you know, noise, you know, interference or, you know, isolation. [00:07:42] Speaker 05: So when we're in JANCO, we're talking about things that are contemplated to be lawful. [00:07:47] Speaker 05: And in this particular case, we have something that is unlawful. [00:07:51] Speaker 05: As the military judge indicates, this is flagrant disregard. [00:07:55] Speaker 05: This is well beyond the pale. [00:07:57] Speaker 05: He even indicated that the persons who conducted this type of behavior should be held accountable. [00:08:03] Speaker 05: And so when you look at the construct of the MCA, it specifically determines what prohibited conduct is. [00:08:09] Speaker 05: And then you cannot read that into the next section that the court would be [00:08:13] Speaker 05: prohibited from jurisdiction over torture. [00:08:18] Speaker 00: But what is it about the jurisdictional provision 2241E2 that makes your points relevant? [00:08:25] Speaker 00: And the reason I ask is it seems to me that what Congress is intending to do with this provision is to say it's a jurisdiction stripping provision that says there shall be no jurisdiction in our court [00:08:36] Speaker 00: It's assuming the following things have happened. [00:08:39] Speaker 00: With that regard to whether the merits of your claim, you're making a passionate argument that you have a meritorious claim that his treatment was unlawful. [00:08:48] Speaker 00: It violated precepts that should be applicable. [00:08:52] Speaker 00: But it seems to me the jurisdictional provision doesn't pin jurisdiction on whether you ultimately have a meritorious claim. [00:09:00] Speaker 00: It's antecedent to that, and it simply asks whether the person has been determined by the United States to have been properly detained as an enemy combatant. [00:09:08] Speaker 00: And if so, there's no jurisdiction. [00:09:10] Speaker 05: Yes, sir. [00:09:11] Speaker 05: My time has fallen below the two-minute mark. [00:09:14] Speaker 05: May I answer the question you're on? [00:09:15] Speaker 05: Okay, so as it relates to it says any aspect of detention transfer treatment trial or conditions of confinement of an alien who was detained by the US and is determined to be proper. [00:09:26] Speaker 05: So again, what we're legislating here, what we're codifying is lawful activity. [00:09:33] Speaker 05: by the United States. [00:09:35] Speaker 05: Things that are been authorized. [00:09:38] Speaker 05: If we look throughout Romany, if we look at Brazil, if we look at all of the different cases that that form the lineage of this, we're looking at lawful activity by the U. S. Government and 23 pages before we're talking about torture. [00:09:53] Speaker 05: And we're talking about prohibited conduct. [00:09:56] Speaker 05: So it does not reconcile that we would strip the court of jurisdiction over something that we know to be prohibited, because then there's no remedy. [00:10:06] Speaker 05: It would make no sense. [00:10:07] Speaker 05: There's not a jurisdiction stripping of what we know international treaties. [00:10:12] Speaker 05: We know what all the protocols, what all the cases have talked about, including the DTA, which [00:10:18] Speaker 05: In the DTA, the Congress talked about and contemplated the fact that there may be actions against, you know, persons that may engage in torture. [00:10:29] Speaker 05: So I rest on that answer. [00:10:32] Speaker 05: Okay, great. [00:10:33] Speaker 04: We'll give you some time back. [00:10:39] Speaker 02: Good morning, Your Honors. [00:10:40] Speaker 02: May it please the court? [00:10:41] Speaker 02: I'd like to begin by addressing the question that Judge Griffith asked about the nature of the notice that the United States filed in the habeas proceeding. [00:10:49] Speaker 02: Judge Griffith, your description was exactly correct. [00:10:52] Speaker 02: The decision was by the United States government was to not treat Mr. Jawad as an enemy combatant, and that decision was a litigation based decision. [00:11:03] Speaker 02: It wasn't a change [00:11:04] Speaker 02: in the executive's determination of Mr. Jawaad's status. [00:11:07] Speaker 03: How do we know that? [00:11:09] Speaker 03: I mean, the next sentence in the notice said that a determination was made by the secretary. [00:11:14] Speaker 03: It's called a determination. [00:11:16] Speaker 02: Not to treat. [00:11:18] Speaker 02: The determination wasn't a change in the status. [00:11:21] Speaker 02: And I'd suggest two responses to Your Honor's question. [00:11:25] Speaker 02: The first is textual within the body of the notice itself. [00:11:28] Speaker 02: On page 82 of the joint appendix, the second page of the notice, the United States informed the district court that there were, let me get the exact quote here, multiple eyewitness accounts that were not previously available for inclusion in the habeas record. [00:11:44] Speaker 02: So that was part of the explanation for why, in the habeas case, [00:11:48] Speaker 02: the government had decided no longer to treat Mr. Jawad as an enemy combatant. [00:11:52] Speaker 02: The second thing I would say to Your Honor's question is, respectfully, this is a filing of the United States. [00:11:59] Speaker 02: It was a litigation document. [00:12:00] Speaker 02: And I believe the government is owed some deference in the interpretation of the meaning of its own document, especially when it's supported by other aspects of the filing, which suggests that there has been no change on the merits of the determination. [00:12:17] Speaker 04: Let me ask you, legal, is it your view of E2 that had there been a subsequent reversal of the initial determination, you're saying that the litigation strategy doesn't represent that, but had there been, what legal consequence would that have? [00:12:34] Speaker 02: I think that would present a more difficult question for the court because the… How would we think about that then? [00:12:41] Speaker 02: So a couple of things I think I would say in response. [00:12:45] Speaker 02: First of all, it would very much depend on the nature of the determination. [00:12:50] Speaker 02: And what I mean by that is whether the determination was that the original determination was incorrect or whether the determination at the time had changed. [00:12:59] Speaker 00: So suppose we have a situation not that says, [00:13:02] Speaker 00: that from this point going forward, there's no longer grounds to detain the individual as an enemy combatant, because let's say they've been rehabilitated, they pose no ongoing danger. [00:13:13] Speaker 00: Suppose it's not that. [00:13:14] Speaker 00: Suppose it's the worst case scenario from the government's perspective, which is that based on information that we've now received, we realize that this individual was never detainable as an enemy combatant, even though there was a prior Caesar determination that he was. [00:13:27] Speaker 00: And if you have that situation where the government comes forward and says, based on information that's come to our attention, this individual is never detainable as an enemy combatant, then would we have jurisdiction? [00:13:39] Speaker 02: I think that would be a much more difficult position for the government and there would be a much stronger argument that this court does have jurisdiction. [00:13:47] Speaker 00: And the reason is because even though [00:13:49] Speaker 00: You could make the argument textually that the person was determined by the United States to have been properly detained, because by hypothesis, there would have been an initial determination. [00:13:58] Speaker 00: But it seems to me that the effect of the second one is to annul the first one. [00:14:03] Speaker 02: So I don't want to foreclose entirely arguments that the government can make, but I think that there would be a reasonable analogy to a statute that said, [00:14:13] Speaker 02: something shall happen if the courts determine. [00:14:18] Speaker 02: One wouldn't think in the normal course that if the district court made a determination, that would be sufficient if a court of appeals later reversed the district courts. [00:14:26] Speaker 04: So your argument here is that the litigation position you took was not an unraveling of the prior decision. [00:14:34] Speaker 02: That's right. [00:14:34] Speaker 02: And I want to be very clear that I'm not conceding that even if it were the litigation decision at that point were a change, [00:14:42] Speaker 02: it would dispositively resolve this case. [00:14:47] Speaker 04: There was no change in the determination. [00:14:49] Speaker 02: That's exactly right and I think it's obvious on its face. [00:14:53] Speaker 02: The term was the United States would no longer treat Mr. Jawad as an enemy combatant and as I referred earlier in my response to Judge Wilkins on page 82 there is additional evidence that the United States referred to [00:15:06] Speaker 04: I understand why you're being cautious here, but the language of the statute does say has been determined. [00:15:12] Speaker 04: It makes it sound like as long as there is such a determination, game over, no jurisdiction. [00:15:19] Speaker 04: That's one would argue a draconian approach to things, but that does seem to be the language of the statute. [00:15:24] Speaker 04: But you're not resting on that. [00:15:26] Speaker 04: Now, you're resting on that there was a determination that has never been reversed. [00:15:31] Speaker 02: Yes, because that's the easier basis, and I think the court doesn't need to go to the more complicated question. [00:15:38] Speaker 02: I'm being cautious precisely because it could be conceivably in a case where the government would have a strong interest in making what you're describing as the Draconian interpretation. [00:15:47] Speaker 02: I do think, as Your Honor suggests, the text of the statute could support it. [00:15:51] Speaker 02: I just think that our position would be harder. [00:15:53] Speaker 03: Perhaps I could give what would be... But why on an issue this important that everything turns on, shouldn't there be some jurisdictional discovery to see what the determination was? [00:16:05] Speaker 03: I mean, you've got a pleading, but the pleading is obtuse. [00:16:11] Speaker 02: Again, Your Honor, I disagree respectfully that it's obtuse. [00:16:16] Speaker 02: It is absolutely clear that the government will no longer treat Mr. Javad as an enemy combatant for purposes of a habeas case. [00:16:24] Speaker 02: That is, for the purposes of whether or not the United States would have asserted in habeas [00:16:30] Speaker 02: that Mr. Jawad is not entitled to the writ. [00:16:32] Speaker 02: Number two, as I suggested before, the very next page refers to additional eyewitness testimony as to Mr. Jawad's conduct on the battlefield. [00:16:42] Speaker 03: And number three, again, with all due respect, Your Honor, this is- What do you mean by treat with habeas and how I'm supposed to understand that to necessarily mean that that's a different determination than the determination [00:16:59] Speaker 03: that is treating under the CSRT, which is also under the AUMF. [00:17:04] Speaker 02: The CSRT made a determination about Mr. Jawad's status. [00:17:08] Speaker 02: Is he an enemy combatant, yes or no? [00:17:09] Speaker 02: The CSRT determined the answer to that question is yes. [00:17:13] Speaker 02: In the district court, in the habeas proceedings, the question was different. [00:17:17] Speaker 02: The question was not, is Mr. Jawad a habea, excuse me, an enemy combatant? [00:17:23] Speaker 02: For the purposes of contesting or not contesting the writ, the government said, [00:17:28] Speaker 02: In light of litigation considerations, we will no longer press the argument that Mr. Jawad is an enemy combatant. [00:17:38] Speaker 02: But that does not say that the executive branch has revised its determination. [00:17:43] Speaker 02: It has just made a decision based on litigation considerations, evidentiary considerations, and the like. [00:17:49] Speaker 03: As I said- What if there's a memo that says, we can't really prove that he's an enemy combatant? [00:17:56] Speaker 03: and it was erroneous for us to say so because we've actually got new evidence that it was his brother that threw the grenade, not him. [00:18:06] Speaker 03: And so we're just going to, you know, fold on this and file [00:18:12] Speaker 03: something that says we're not going to treat them as an enemy combatant anymore for the purposes of habeas. [00:18:17] Speaker 03: Would that be completely consistent with this filing? [00:18:20] Speaker 02: No, it would not, Your Honor. [00:18:21] Speaker 02: On page 82 of the Joint Appendix, which I urge you to take a look at, the government refers to evidence that was not in the habeas record that includes eyewitness accounts of Mr. Jawad engaging in the behavior [00:18:34] Speaker 02: which was the basis for his detention. [00:18:36] Speaker 02: So it is abundantly clear that the point that the government was making in the district court was that there was evidence that it did not have an evidentiary record in the habeas proceeding to make its case. [00:18:48] Speaker 02: And so it decided, as a litigation strategy matter, not to treat Mr. July as an enemy combatant. [00:18:55] Speaker 02: But it is, I contend, Your Honor, clear on the face of the filing that the government had not revised its decision [00:19:03] Speaker 02: about Mr. Gillott's status. [00:19:05] Speaker 02: I'd also like to make the following point, which I think is fairly important in understanding the question about revision of the government's determination, the United States' determination. [00:19:16] Speaker 02: There is no mechanism, there was no mechanism for executive review of CSRT. [00:19:22] Speaker 02: determination. [00:19:24] Speaker 02: The CSRT made the only determination about enemy combatant status under the DTA and the MCA as it was enacted. [00:19:32] Speaker 02: The place for review of such a determination was this court, and in Aljenco, this court held that a grant of [00:19:41] Speaker 02: the United States, it was the executive branch's determination. [00:19:51] Speaker 02: And ARBs, Administrative Review Boards, as we explained at page 11, note three of our brief, do not sit in review of CSRTs. [00:20:01] Speaker 02: They make a current-time determination about whether continued detention is justified, whether among other reasons. [00:20:07] Speaker 00: The CSRTs happen periodically, right? [00:20:09] Speaker 02: The CSRTs happen periodically, right? [00:20:11] Speaker 02: The CSRTs happen periodically, right? [00:20:11] Speaker 02: My understanding is that they do not, that in the usual course... It's once and it's over? [00:20:17] Speaker 02: Usually so, and then ARBs would subsequently make the periodic determinations, what are now carried out by so-called PRBs. [00:20:25] Speaker 03: Although there must be occasions where that's not the case, because the Ninth Circuit case, I can't remember the name of it, there were multiple CSRT. [00:20:33] Speaker 02: And what I was going to suggest before is this case would be an even more difficult than the hypothetical we were considering earlier about the executive making a litigation decision on the merits. [00:20:43] Speaker 02: If a subsequent CSRT or indeed if the very CSRT that made the determination two weeks later changed its mind, I think that would be the most difficult case for the government. [00:20:54] Speaker 02: But I want to stress that the nature of the [00:20:56] Speaker 02: The proceedings, the CSRTs make the initial determination. [00:21:00] Speaker 02: There is no review of that. [00:21:02] Speaker 02: The only review was set up for this court, and it would actually be a quite perverse outcome, I believe, create perverse incentives if, as Aljenko says, a grant of a habeas writ [00:21:15] Speaker 02: is not sufficient to undo the determination for this jurisdictional bar purposes, but if the government concedes the writ, that does it undo the jurisdictional bar. [00:21:24] Speaker 02: That would give an incentive for the government to litigate to the death every single habeas case rather than conceding the writ in an appropriate litigation posture that I suggest to your honors would be contrary to the United States interest and certainly contrary to the detainee's interest. [00:21:41] Speaker 03: What work does property do in the statute? [00:21:45] Speaker 02: properly modifies the determination that the CSRT has to make. [00:21:51] Speaker 02: But this court in Aljenco emphasized that that does not mean that the determination has to be correct. [00:21:58] Speaker 02: The question is whether or not the CSRT, by its own standards, the standards that the CSRT applied, [00:22:04] Speaker 02: determined that the individual is properly detained. [00:22:08] Speaker 02: But again, Al Janko, I think has has explicitly resolved the question that your honor is is raising that is whether or not the correctness of the CSRT determination. [00:22:18] Speaker 02: Is it all relevant to the jurisdictional bar? [00:22:21] Speaker 03: How how I guess are we to know or anybody to know whether the CSRT properly determined anything? [00:22:30] Speaker 02: With respect, Your Honor, so two answers. [00:22:33] Speaker 02: First of all, there was under the statutory scheme, this Court had the opportunity, had the ability to review CSRT determinations under the Detaining Treatment Act and under the Military Commissions Act. [00:22:46] Speaker 02: That process was effectively practically put to the side after Boumediene when direct habeas review became available. [00:22:54] Speaker 02: But the mechanism was for this court to engage in judicial review of the CSRT determinations. [00:23:01] Speaker 02: But the court in Maldenko explained after Boumediene that the correctness of the CSRT determination is not an issue that's relevant to the jurisdictional bar. [00:23:12] Speaker 03: But the court said in explaining what properly meant [00:23:17] Speaker 03: It's cited to Barhomi, if that's the correct pronunciation. [00:23:24] Speaker 03: That was a case where we did review the CSRT determination and we reviewed it basically to see whether they had sufficient evidence and whether they applied the proper standard. [00:23:36] Speaker 03: preponderance standard and, you know, using a very differential standard of review, we affirmed, in essence, the CSRT determination. [00:23:49] Speaker 03: So it would seem that in El Genco, we were saying that properly means that the CSRT has to at least have sufficient evidence and apply the proper legal standard. [00:24:04] Speaker 03: For instance, the CSRT couldn't say, well, we don't have proper preponderance here, but there's probable cause to believe he's an enemy combatant, and so we're going to deem him to be such. [00:24:20] Speaker 03: You wouldn't contend that that's a proper determination, would you? [00:24:24] Speaker 02: So Judge Wilkins Aljenko is this court's precedent and we'll wait to hear what the court says is the best understanding of it. [00:24:32] Speaker 02: But I read Aljenko very differently. [00:24:34] Speaker 02: I read Aljenko to go on to say that the correctness of the CSRT's determination is not at all relevant. [00:24:41] Speaker 02: to the jurisdictional bar and that it is not the rule of this court to evaluate the correctness of the CSRT's determination in deciding whether or not the jurisdictional bar precludes a damages action. [00:24:54] Speaker 03: But the court didn't say that proper meant nothing. [00:24:56] Speaker 03: I'm asking you what proper means. [00:24:58] Speaker 02: Proper means that the CSRT has to make a determination that an individual is determined as, sorry, is detained as an enemy combatant. [00:25:08] Speaker 03: Then you don't need proper in the sentence if you're just saying that there has to be a determination. [00:25:14] Speaker 02: I agree that the word properly in the context of that sentence is a redundancy. [00:25:19] Speaker 00: Why? [00:25:20] Speaker 00: But the properly modifies detained, not determined, in the statute. [00:25:25] Speaker 00: Right, I don't think properly appears before determined. [00:25:28] Speaker 00: I think it appears before detainment. [00:25:29] Speaker 02: You're quite right, Your Honor, you're quite right. [00:25:31] Speaker 00: So the question. [00:25:32] Speaker 02: It is determined to have been properly detained. [00:25:34] Speaker 00: Right, so the question, as I understood it, is a CSIRT is always making a determination as to whether the person is properly detained as an enemy combatant. [00:25:43] Speaker 00: Whether that determination is proper is a different question, but the word proper doesn't modify determined, it modifies detainment. [00:25:49] Speaker 02: It modifies detainment, that's exactly right, Your Honor. [00:25:51] Speaker 03: But how is it doing any work, even if it's the modifying detain, if all it means is that the C-SERT meets? [00:26:00] Speaker 03: I mean, if the C-SERT group meets and there's no evidence that's presented at all, but they say, this person, we want to detain them as an enemy combatant, and we have no evidence, is that person being properly detained? [00:26:19] Speaker 02: without any evidence presented to the CSERT, I would imagine, first of all, I appreciate that this is finding the hypothetical, but a CSERT would not make such a determination. [00:26:29] Speaker 02: If you're asking me to assume that the CSERT has made that determination, I would say, [00:26:34] Speaker 02: if the CSERT would be making a determination that the individual was properly detained, it would be an incorrect determination. [00:26:42] Speaker 02: However, the correctness or incorrectness of that determination is not relevant to the jurisdiction. [00:26:48] Speaker 03: So just I just want to make sure I understand your position as we try to interpret this statute. [00:26:55] Speaker 03: Your position is that if hypothetically, the CSERT is decided without any evidence whatsoever, [00:27:02] Speaker 03: to find that this person is properly detained, and then they later brought suit, we would not have jurisdiction because that determination has been made. [00:27:12] Speaker 02: I believe Aljenko expressly holds that, Your Honor. [00:27:17] Speaker 02: So in short, yes. [00:27:20] Speaker 03: And you think that's compelled by the plain language? [00:27:23] Speaker 02: I do, and this court said as much in Aljenko. [00:27:26] Speaker 03: And what? [00:27:27] Speaker 03: What did we mean then? [00:27:29] Speaker 03: When we said when we cited what was the whole purpose of citing? [00:27:35] Speaker 03: Our homing. [00:27:39] Speaker 02: My recollection and I'm pulling up the case right now. [00:27:41] Speaker 02: Does the your honor have a page citation for me to look at? [00:27:44] Speaker 02: My recollection is that the bar homie 144. [00:27:47] Speaker 02: Thank you, your honor. [00:27:54] Speaker 03: The court said the phrase, properly detained as an enemy combatant, identifies the type of determination the executive branch must make, vis a determination that the detainee meets the AUMF's criteria for enemy combatant status, CEG Barhomi. [00:28:11] Speaker 02: Right. [00:28:11] Speaker 02: And then, Your Honor, it goes on to say in the very next sentence after the parenthetical, but the statute does not say that the bar applies to an alien whom the United States has properly determined to have been properly detained as an enemy combatant. [00:28:24] Speaker 02: It requires only that the executive branch determine that the AUMF authorizes the alien's detention without regard to the determination's correctness. [00:28:34] Speaker 02: I think that's dispositive and I think that, as I was going to suggest a moment ago, the citation and the discussion of Barhomi was to contrast the inquiry that the court is required to make under the jurisdictional provision. [00:28:47] Speaker 03: But wasn't it talking about correctness in the sense of correct review by a court? [00:28:55] Speaker 02: I'm sorry, I'm not following your question, Your Honor. [00:28:58] Speaker 03: I mean, Aljenko was a case where a habeas court later found that the executive's decision was incorrect. [00:29:08] Speaker 02: That's right. [00:29:08] Speaker 02: And nevertheless, Aljenko held that the individual could not bring a damages action. [00:29:13] Speaker 03: So why doesn't correctness in this [00:29:16] Speaker 03: at page 144, when they say, without regard to the termination's correctness, meaning without regard if we find it to be incorrect on habeas later. [00:29:30] Speaker 03: Why should we stretch that language to mean that even if they didn't follow their own procedures, [00:29:37] Speaker 03: It's still a determination that Congress intended in this statute to use to deprive the courts of jurisdiction. [00:29:48] Speaker 02: So, Your Honor, I think this is a lesser included. [00:29:51] Speaker 02: That is, if even on the grant of habeas, where the correctness or incorrectness is judicially determined, [00:30:01] Speaker 02: where the executive, especially in the context of a case like this, has not made any revision to its determination. [00:30:09] Speaker 02: I just think that it comes with it. [00:30:11] Speaker 02: And I guess I'd like to stress it would create quite perverse incentives for the court to hold, as in Aljenco, that damages are precluded [00:30:21] Speaker 02: once a court grants habeas, but not if the executive declines to pursue the habeas case, because that would give the executive incentive to litigate every habeas action to the bitter end, rather than concede the writ and allow for the release of the detainee. [00:30:43] Speaker 02: That would not be consistent with the detainee's interests or the government's interests, and it can't be what Congress intended. [00:30:51] Speaker 03: The CSRT meets and, without any evidence, declares someone to be an enemy combatant. [00:30:57] Speaker 03: A whistleblower inside the military advises the president that that has happened. [00:31:02] Speaker 03: The president reviews the case and says, release this person immediately. [00:31:08] Speaker 03: There's no evidence that he's an enemy combatant. [00:31:13] Speaker 03: The people at the base are upset that this person's going to be released, and they beat him half to death. [00:31:19] Speaker 03: and he sues in this court. [00:31:22] Speaker 03: We don't have jurisdiction because the CSRT made a determination. [00:31:27] Speaker 02: I think that, Your Honor, gets closer to the prior hypotheticals we were discussing. [00:31:33] Speaker 02: If the President of the United States makes a determination that the individual was not an enemy combatant on the merits, I think that is a much more difficult case for the government. [00:31:44] Speaker 02: I would not want to concede that the jurisdictional bar is not applicable for the reasons that [00:31:53] Speaker 02: I discussed in the colloquy with Judge Griffith, but I do agree that it would be a much more difficult case because that would at least be an action by the executive [00:32:04] Speaker 02: with a capital E that the individual was not an enemy combatant. [00:32:08] Speaker 02: That is, with respect, I appreciate it's a hypothetical to test principles, but that's quite, quite far from this case where we have. [00:32:17] Speaker 03: I understand it's quite far from this case, but you're asking us to construe the statute to mean that essentially proper means nothing. [00:32:26] Speaker 02: No, with respect to your honor, I'm asking. [00:32:28] Speaker 03: As long as there's a determination, then that's all that we need. [00:32:34] Speaker 02: With respect, Your Honor, I'm asking the court to do nothing more than it has already done in Al Janko. [00:32:39] Speaker 02: This precise issue is one that, given the facts of this case, this case comes squarely within the rule this court has already laid down in Al Janko, at least as I understand it. [00:32:51] Speaker 00: Well, if our rationale were to also, were to be so sweeping that it would take in the hypothetical that Judge Wilkins offers, then we'd be doing more. [00:32:59] Speaker 00: Agreed. [00:33:00] Speaker 00: So I think the question is, [00:33:02] Speaker 00: The statute doesn't speak in terms of CSERV. [00:33:04] Speaker 00: The statute speaks in terms of determination by the United States. [00:33:07] Speaker 02: Yes, Your Honor. [00:33:07] Speaker 00: And so the question, I think, that the hypotheticals that we're banding about, including the one that Judge Wilkins poses, is if there's been a determination by the United States that the person's properly detained as an enemy combatant, and if there's subsequent determination by the United States that the person's not properly detained as an enemy combatant, then what do we do with the statute? [00:33:23] Speaker 00: Because the statute tells us if you have been determined to have been properly detained, then there's no jurisdiction. [00:33:29] Speaker 00: But the negative thing to that would seem to me [00:33:31] Speaker 00: to be that if there's a determination that you're not properly detained as an enemy combatant, then there is jurisdiction. [00:33:37] Speaker 00: And so we get into all these questions about sequencing, which determination came first, which determination came second, but those cases all presuppose a situation in which there's been both a determination by the United States that the person is properly detained as an enemy combatant and a determination by the United States that the person is not properly detained as an enemy combatant. [00:33:55] Speaker 00: And I take it your position in this case is you don't have the second of those here and we don't have to treat with what happens in that situation because [00:34:01] Speaker 00: This case deals with the situation in which there was a determination by the United States that the person is properly detained as an enemy combatant and no subsequent action that calls that into question. [00:34:10] Speaker 02: That's exactly right, Your Honor, and that's the reason why I'm not able on behalf of the United States to take a firm position in light of the hypotheticals. [00:34:17] Speaker 02: If we have a case that presents that, we would be forced to grapple with the difficult issues [00:34:22] Speaker 02: and I think that to the extent that the court has concern about a subsequent revision by the executive branch, it could expressly leave that question open for consideration in the next case. [00:34:36] Speaker 02: Thank you very much. [00:34:38] Speaker 04: Mr. Motalva will give you two minutes back. [00:34:45] Speaker 05: I want to direct a couple of things. [00:34:47] Speaker 05: First of all, in terms of hypotheticals, I represented Mohammed Jawad during the military commissions as well as during the habeas proceedings. [00:34:55] Speaker 05: And so I was the person who went to Afghanistan, I was the one who vetted the facts, and I briefed the DOJ on these issues. [00:35:03] Speaker 05: The new facts and circumstances that the government alleges in their pleading [00:35:06] Speaker 05: were not new. [00:35:08] Speaker 05: Judge Havel gave the government an opportunity to say, when did you get this new information? [00:35:12] Speaker 05: Where did you get this new information? [00:35:14] Speaker 05: Present that to me, otherwise he's going to be released. [00:35:17] Speaker 05: And they were unable to do that because when they realized that the left hand wasn't talking with the right hand, there was no new information. [00:35:24] Speaker 05: then the key pieces of information were three things. [00:35:27] Speaker 05: The alleged confession written, and two eyewitness accounts. [00:35:31] Speaker 05: One was a police officer in Kabul who allegedly detained a Jawad. [00:35:37] Speaker 05: That could not happen because there was another witness that said he's the one who allegedly detained Jawad. [00:35:42] Speaker 05: The police officer, if you look at the facts, if somebody would have actually looked at the facts, the police officer [00:35:49] Speaker 05: alleged that the crime happened in a different location than the alleged incident even occurred. [00:35:55] Speaker 05: So that was the first piece. [00:35:56] Speaker 05: The second piece was the alleged tomato vendor that allegedly detained Juad wasn't even physically located where the incident occurred. [00:36:05] Speaker 05: That was the second thing they had to look at. [00:36:06] Speaker 05: And the third thing that the government had to consider was that this alleged confession was done with a gun to Juad's head with [00:36:14] Speaker 05: in a language that he did not understand. [00:36:17] Speaker 04: So your argument is that in fact there was a later determination by the United States? [00:36:22] Speaker 05: That's correct, Your Honor. [00:36:23] Speaker 05: And they had these facts in full view before they made that determination because the sequence of events was they were briefed on the facts, they actually had to look at the case and consider the matters before it, and then they made that determination. [00:36:36] Speaker 05: He was in the middle of a military commission's prosecution. [00:36:39] Speaker 05: It would not make sense if there were facts that demonstrated that he did what he was alleged to have done for the court to say that he was not properly detainable. [00:36:48] Speaker 05: There's no basis. [00:36:49] Speaker 05: Why would the court subsequently say he's not detainable if the facts of circumstances met the minimal threshold for that detention? [00:36:57] Speaker 00: I thought the reason that the other evidence was invoked in argument today is not necessarily to say that the other evidence is in fact probative and shows that he was being properly detained or that he should have been charged for these actions, but it was just meant to shed light on the statement that will no longer treat Petitioner as detainable because [00:37:18] Speaker 00: If there's a document that says on one hand, we will no longer treat this individual as detainable, and then on the other hand cites evidence, which may, let's just assume you're right, and it has been there all along, but it nonetheless invokes evidence that says then this evidence can be the subject of subsequent criminal investigation. [00:37:37] Speaker 00: Then it sheds light on what treatable means because it tends to bolster the notion that it's a litigation-related judgment rather than a substantive determination that the person was never detainable as an enemy combatant to begin with. [00:37:48] Speaker 05: As a hypothetical, I understand, Your Honor, but in reality, what happened is that did not occur. [00:37:53] Speaker 05: This wasn't a litigation strategy. [00:37:55] Speaker 05: The government was visceral and aggressive about trying to figure out a way to prosecute Mohammed Jawad. [00:38:02] Speaker 05: They even expressed during court argument that they were intending on potentially prosecuting him in New York. [00:38:07] Speaker 05: and going through whatever, and that this new evidence would potentially give them the ability to do so. [00:38:12] Speaker 05: So there was never a position that the government was taking that they were not trying to prosecute Mohamed Jawad. [00:38:17] Speaker 05: What they conceded on is when they realized that when they actually looked at the record, they realized that they had nothing. [00:38:25] Speaker 05: There was nothing in that record that substantiated any of the allegations against him, and so that was the determination that he was no longer detainable. [00:38:34] Speaker 05: They did not have a basis for it. [00:38:36] Speaker 03: Did you seek any discovery of what the determination was that was actually made, or did you just, you know, accept the fact that they were conceding the habeas and your client was going to be released and you wanted to get out of there? [00:38:49] Speaker 05: Well, there were two separate issues going on. [00:38:52] Speaker 05: We had the commissions, your honor, and then we had the habeas. [00:38:54] Speaker 05: And as as to the habeas, Judge Huvel ordered the government to produce that information. [00:38:59] Speaker 05: So we didn't have to undertake in any discovery. [00:39:03] Speaker 05: She directed the government if they had information that substantiated their basis to bring that forward to the court, and she would evaluate that. [00:39:09] Speaker 05: So we didn't have to undertake discovery on that issue, Your Honor. [00:39:13] Speaker 05: It was presented. [00:39:14] Speaker 05: And as to the commissions, the only reason we got to habeas is because President Obama stayed the commission's process, which led to a potential indefinite detention issue. [00:39:25] Speaker 05: And so we had not yet arrived at the AUMF issue, which, as is in the Joint Appendix, the military judge was explaining, this determination has not [00:39:35] Speaker 05: yet been made and needs to be made and it will be made prior to going to trial on the merits. [00:39:40] Speaker 05: And so that's where we sort of leave it because he suppressed the statements and then a further determination was to be made. [00:39:46] Speaker 05: I'm sorry. [00:39:46] Speaker 03: What about the fact that the government says that we should defer to their [00:39:51] Speaker 03: explanation as to what their notice means in that we don't want to create a disincentive for the government to concede habeas relief if that's going to perhaps open the government up for litigation afterwards. [00:40:15] Speaker 05: So as applied to this case and as applied to the idea of torture, the issue is that [00:40:21] Speaker 05: You know, the MCA tries to take away jurisdiction for two reasons. [00:40:25] Speaker 05: One, habeas, it says the court can't go there, and two, almost torture issue. [00:40:29] Speaker 05: And so, if there's no effect to the determinations, it would be meaningless. [00:40:34] Speaker 05: It's the exception that swallows the rule. [00:40:36] Speaker 05: If there's no analysis that's to be conducted in any of these words or meaning, it's basically because we had them, it was okay. [00:40:44] Speaker 05: And that's the end of the inquiry. [00:40:45] Speaker 05: There's no judicial oversight. [00:40:47] Speaker 05: And so within the statute, we can't read that. [00:40:50] Speaker 05: We're talking about prohibited conduct. [00:40:52] Speaker 05: We're talking about accountability. [00:40:53] Speaker 05: We're talking about don't do this, don't do that. [00:40:55] Speaker 05: And we're saying at the same time that we're gonna strip the court of reviewing these actions with no consequence. [00:41:03] Speaker 05: So we're effectively saying that torture is endorsed and approved and protected under all circumstances and that the court should never reach in to evaluate that determination. [00:41:14] Speaker 05: We believe that improperly. [00:41:17] Speaker 04: Thank you very much. [00:41:18] Speaker 04: The case is submitted.