Guantanamo Detainee Decision

Andreas Paulus has a fair point that Judge Green’s decision can be read as a significant defeat for the government’s core arguments on the legality of the Guantanamo detentions and the government’s own reading of the Rasul case. But there are elements of the decision that may deflate the hopes of lawyers planning on further tort cases on behalf of detainees. Here’s what the government prevailed on:

(1) The part of their motion to dismiss that argued that the Geneva Conventions do not provide a private cause of action, a question which the judge herself noted is also at issue in the Hamdan appeal. The government’s argument was (1) that the Geneva Conventions create no rights in individuals; (2) that even if they did, the GC do not create private rights of action in federal court because they are “non-self-executing”; and (3) even if 1 and 2 are rejected, al Qaeda and the Taliban are not protected by the GC. The judge adopted Judge Robertson’s ruling in Hamdan as to points 1 and 2, but accepted the government’s argument on point 3, but only as to al Qaeda and not the Taliban (i.e., Taliban detainees may assert rights under the GC)

(2) The Alien Tort Claims Act: Judge Green adopted the reasoning of Judge Kollar-Kotelly in her original Rasul decision that the doctrine of sovereign immunity bars the tort claims and that the waiver provisions of the Administrative Procedure Act are inapplicable on the grounds of the military authority exception. (An interesting question is here to what extent the military exception can be asserted as a defense in Iraq for claims arising post-transfer of sovereignty.)

(3) Other claims dismissed included general assertions of claims under the 6th, 8th and 14th Amendments.

For a discussion of the procedural effects of this decision, which Judge Green made in her role as coordinator for several cases originally assigned to other DC district court judges, see this helpful discussion at SCOTUSblog.