PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA v. Tommy G. THOMPSON, in his official capacity as, Secretary, United States Department of Health and Human Services, et al.
No. 02-5110
United States Court of Appeals, District of Columbia Circuit
March 5, 2003
1134
BEFORE: EDWARDS, HENDERSON, and RANDOLPH, Circuit Judges.
ORDER
Upon consideration of federal appellees’ petition for rehearing filed February 7, 2003, it is
ORDERED that the petition be granted. It is
FURTHER ORDERED that the opinion in Pharmaceutical Research and Manufacturers of America v. Thompson, 313 F.3d 600 (D.C. Cir. 2002), be amended as follows:
Delete the last sentence of the second paragraph, “We therefore reverse the judgment of the District Court and enter judgment for PhRMA.”
Insert in lieu thereof:
The judgment is reversed and the case is remanded for entry of an appropriate judgment by the District Court.
Delete the last clause of the last paragraph of the opinion. The last paragraph of the opinion now reads:
For the aforementioned reasons, the judgment of the District Court is hereby reversed and the case is remanded for entry of an appropriate judgment.
Khaled A. F. AL ODAH, et al. v. UNITED STATES of America, et al.
Nos. 02-5251, 02-5284 & 02-5288
United States Court of Appeals, District of Columbia Circuit
Argued Dec. 2, 2002. Decided March 11, 2003.
Thomas B. Wilner and Joseph Margulies argued the cause for appellants. With them on the briefs were Neil H. Koslowe, Michael Ratner, Beth Stephens, and L. Barrett Boss.
David P. Sheldon was on the brief of amicus curiae National Association of Criminal Defense Lawyers in support of appellants.
Paul D. Clement, Deputy Solicitor General, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, U.S. Department of Justice, Gregory G. Garre and David B. Salmons, Assistants to the Solicitor General, Douglas N. Letter, Robert M. Loeb and Katherine S. Dawson, Attorneys.
Daniel J. Popeo, Richard A. Samp and Paul D. Kamenar were on the brief for amici curiae Washington Legal Foundation, et al., in support of appellees.
Before: RANDOLPH and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
Through their “next friends,” aliens captured abroad during hostilities in Afghanistan and held abroad in United States military custody at the Guantanamo Bay Naval Base in Cuba brought three actions contesting the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions.
The Constitution, as its preamble also declares, empowers Congress to “provide for the common Defence.”
In response to the attacks of September 11, 2001, and in the exercise of its constitutional powers, Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the attacks and recognized the President‘s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Authorization for Use of Military Force,
In one of the cases (Al Odah v. United States, No. 02-5251), fathers and brothers of twelve Kuwaiti nationals detained at Camp X-Ray in Guantanamo Bay brought an action in the form of a complaint against the United States, President George W. Bush, Secretary of Defense Donald H. Rumsfeld, Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers, Brig. Gen. Rick Baccus, whom they allege is the Commander of Joint Task Force 160, and Col. Terry Carrico, the Commandant of Camp X-Ray/Camp Delta. None of the plaintiffs’ attorneys have communicated with the Kuwaiti detainees. The complaint alleges that the detainees were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to United States forces; and that they were transferred to Guantanamo Bay sometime between January and March 2002. A representative of the United States Embassy in Kuwait informed the Kuwaiti government of their whereabouts. Invoking the Great Writ,
Rasul v. Bush (No. 02-5288) is styled a petition for a writ of habeas corpus on behalf of three detainees, although it seeks other relief as well. The next friends bringing the petition are the father of an Australian detainee, the father of a British detainee, and the mother of another British detainee. Respondents are President Bush, Secretary Rumsfeld, Col. Carrico, and Brig. Gen. Michael Lehnert, who is
Habib v. Bush (No. 02-5284) is also in the form of a petition for writ of habeas corpus and is brought by the wife of an Australian citizen, acting as his next friend. Naming President Bush, Secretary Rumsfeld, Brig. Gen. Baccus, and Lt. Col. William Cline as defendants, the petition alleges that Habib traveled to Pakistan to look for employment and a school for his children; that after Pakistani authorities arrested him in October 2001, they transferred him to Egyptian authorities, who handed him over to the United States military; and that the military moved him from Egypt to Afghanistan and ultimately to Guantanamo Bay in May 2002. Australian authorities visited Guantanamo and issued a press release confirming Habib‘s presence there. The Habib petition, like the other two cases, invokes the Due Process Clause of the
The district court held that it lacked jurisdiction. Believing no court would have jurisdiction, it dismissed the complaint and the two habeas corpus petitions with prejudice. Rasul v. Bush, 215 F.Supp.2d 55, 56 (D.D.C. 2002). In the court‘s view all of the detainees’ claims went to the lawfulness of their custody and thus were cognizable only in habeas corpus. Id. at 62-64. Relying upon Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), the court ruled that it did not have jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States. Rasul, 215 F.Supp.2d at 72-73.
II.
While these cases were pending, the Ninth Circuit affirmed an order dismissing a habeas corpus petition for all Guantanamo detainees on the ground that those bringing the action - clergy, lawyers, and law professors - were not proper “next friends.” Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153, 1165 (9th Cir. 2002). In the cases before us, the government does not question the “next friend” status of the individuals prosecuting the actions, at least insofar as they seek writs of habeas corpus. There is a long history, going back to the 1600s in England, of “next friends” invoking the Great Writ on behalf of prisoners who are unable to do so because of their inaccessibility. Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S.Ct. 1717, 1726-27, 109 L.Ed.2d 135 (1990). For the federal
In each of the three cases, the detainees deny that they are enemy combatants or enemy aliens. Typical of the denials is this paragraph from the petition in Rasul:
The detained petitioners are not, and have never been, members of Al Qaida or any other terrorist group. Prior to their detention, they did not commit any violent act against any American person, nor espouse any violent act against any American person or property. On information and belief, they had no involvement, direct or indirect, in either the terrorist attacks on the United States September 11, 2001, or any act of international terrorism attributed by the United States to al Qaida or any terrorist group.
(As the district court pointed out, an affidavit from the father of the Australian detainee in Rasul admitted that his son had joined the Taliban forces. Rasul, 215 F.Supp.2d at 60 n. 6.) Although the government asked the district court to take judicial notice that the detainees are “enemy combatants,” the court declined and assumed the truth of their denials. Id. at 67 n. 12.
This brings us to the first issue: whether the Supreme Court‘s decision in Johnson v. Eisentrager, which the district court found dispositive, is distinguishable on the ground that the prisoners there were “enemy aliens.” In the two and a half years leading up to the 1950 Eisentrager decision, “German enemy aliens confined by American military authorities abroad” filed more than 200 habeas corpus petitions invoking the Supreme Court‘s original jurisdiction. 339 U.S. at 768 n. 1, 70 S.Ct. at 938 n. 1. The Court denied each petition, often with four Justices announcing that they would dismiss for lack of jurisdiction.
Eisentrager differed from the earlier World War II habeas petitions. The case started not in the Supreme Court, but in a district court; and the Germans seeking the writ had not been convicted at Nuremberg. After Germany‘s surrender on May 8, 1945, but before the surrender of Japan, twenty-one German nationals in China assisted Japanese forces fighting against the United States. The Germans were captured, tried by an American military commission headquartered in Nanking, convicted of violating the laws of war, and transferred to the Landsberg prison in Germany, which was under the control of the United States Army. 339 U.S. at 765-66, 70 S.Ct. at 937-38. One of the prisoners, on behalf of himself and the twenty others, sought writs of habeas corpus in the United States District Court for the District of Columbia, claiming violations of
The Supreme Court, agreeing with the district court, held that “the privilege of litigation” had not been extended to the German prisoners. 339 U.S. at 777-78, 70 S.Ct. at 943-44. (Although Eisentrager discussed only the jurisdiction of federal courts, state courts do not have jurisdiction to issue writs of habeas corpus for the discharge of a person held under the authority of the United States. Tarble‘s Case, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1872).) The prisoners therefore had no right to petition for a writ of habeas corpus: “these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 339 U.S. at 778, 70 S.Ct. at 943. Moreover, “trials would hamper the war effort and bring aid and comfort to the enemy.” Id. at 779, 70 S.Ct. at 944. Witnesses, including military officials, might have to travel to the United States from overseas. Judicial proceedings would engender a “conflict between judicial and military opinion” and “would diminish the prestige of” any field commander as he was called “to account in his own civil courts” and would “divert his efforts and attention from the military offensive abroad to the legal defensive at home.” Id.
The detainees here are quite right that throughout its opinion, the Supreme Court referred to the Eisentrager prisoners as “enemy aliens.” The petitioners in Habib and Rasul distinguish themselves from the German prisoners on the ground that they have not been charged and that the charges in Eisentrager are what rendered the prisoners “enemies.” For this they rely on Justice Brennan‘s dissenting opinion in United States v. Verdugo-Urquidez, 494 U.S. 259, 290-91, 110 S.Ct. 1056, 1074-75, 108 L.Ed.2d 222 (1990). Brief for Appellants at 29 (No. 02-5284 et al.). Eisentrager, Justice Brennan wrote, “rejected the German nationals’ efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers.” 494 U.S. at 291, 110 S.Ct. at 1074 (Brennan, J., dissenting). This seems to us doubly mistaken. In the first place, the German prisoners were not alleged to be “soldiers.” They were civilian employees of the German government convicted of furnishing intelligence to the Japanese about the movement of American forces in China. Eisentrager, 339 U.S. at 765-66, 70 S.Ct. at 937-38; Eisentrager, 174 F.2d at 962. In the second place, it was not their convictions - which they contested - that rendered them “enemy aliens.” The Supreme Court made this explicit: “It is not for us to say whether these prisoners were or were not guilty of a war crime,” 339 U.S. at 786, 70 S.Ct. at 948; “the petition of these prisoners admits[] that they are really alien enemies,” id. at 784, 70 S.Ct. at 946-47. The Court‘s description of the prisoners as “enemy aliens” rested instead on their status as nationals of a country at war with the United States. Id. at 769 n. 2, 70 S.Ct. at 939 n. 2 (quoting Techt v. Hughes, 229 N.Y. 222, 229, 128 N.E. 185 (1920) (Cardozo, J.)). (Although Germany surrendered in 1945, the state of war with Germany did not end until October 19, 1951.
Nonetheless the Guantanamo detainees have much in common with the German prisoners in Eisentrager. They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in the custody of the American military, and they have never had any presence in the United States. For the reasons that follow we believe that under Eisentrager these factors preclude the detainees from seeking habeas relief in the courts of the United States.
The court of appeals in Eisentrager had ruled that “any person who is deprived of his liberty by officials of the United States, acting under the purported authority of that Government,” and who can establish a violation of the Constitution, “has a right to the writ.” 174 F.2d at 963. This statement of law, unconstrained by the petitioner‘s citizenship or residence, by where he is confined, by whom or for what, “necessarily” followed - thought the court of appeals - from the
In answer the Supreme Court rejected the proposition “that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses,” id. at 783, 70 S.Ct. at 946. The Court continued: “If the Fifth Amendment confers its rights on all the world . . . [it] would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American Judiciary to assure them freedoms of speech, press, and assembly as in our First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.” Id. at 784, 70 S.Ct. at 947. (Shortly before Germany‘s surrender, the Nazis began training covert forces called “werewolves” to conduct terrorist activities during the Allied occupation. See, e.g., http://www.archives.gov/iwg/declassified_records/oss_records_263_wilhelm_hoettl.html.) The passage of the opinion just quoted may be read to mean that the constitutional rights
In 1990, for instance, the Court stated that Eisentrager “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” Verdugo-Urquidez, 494 U.S. at 269, 110 S.Ct. at 1063. After describing the facts of Eisentrager and quoting from the opinion, the Court concluded that with respect to aliens “our rejection of the extraterritorial application of the Fifth Amendment was emphatic.” Id. By analogy, the Court held that the
Although the Supreme Court‘s statement in Verdugo-Urquidez about the
The consequence is that no court in this country has jurisdiction to grant habeas relief, under
It is true that after deciding jurisdiction did not exist, the Supreme Court, in part IV of its Eisentrager opinion, went on to consider and reject the merits of the prisoners’ claims. From this the detainees reason that the Court‘s holding must have been merely that the military courts, rather than the civilian courts, had jurisdiction to try charges of war crimes, not that the district court lacked jurisdiction to adjudicate the habeas petition. We find it impossible to read the Court‘s statements - many of which we have already quoted - about the courts not being open to the prisoners as so limited. The discussion in part IV of the Court‘s opinion was extraneous. The dissenting Justices viewed it as such, calling part IV “gratuitous,” “wholly irrelevant,” lending “no support whatever to the Court‘s holding that the District Court was without jurisdiction.” 339 U.S. at 792, 794, 70 S.Ct. at 950, 951-52 (Black, J., joined by Douglas and Burton, JJ., dissenting). There is a ready explanation for the Eisentrager Court‘s method. Before Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Supreme Court (and the lower federal courts) were not always punctilious in treating jurisdiction as an antecedent question to the merits. The Court in Steel Co. acknowledged as much. See 523 U.S. at 101, 118 S.Ct. at 1016. Part IV of Eisentrager, whether an advisory opinion (see 523 U.S. at 101, 118 S.Ct. at 1016) or an alternative holding, does not detract from the central meaning of the decision that the district court did not have jurisdiction to issue writs of habeas corpus.
We have thus far assumed that the detainees are not “within any territory over which the United States is sovereign,” Eisentrager, 339 U.S. at 778, 70 S.Ct. at 943. The detainees dispute the assumption. They say the military controls Guantanamo Bay, that it is in essence a territory of the United States, that the government exercises sovereignty over it, and that in any event Eisentrager does not turn on technical definitions of sovereignty or territory.
The United States has occupied the Guantanamo Bay Naval Base under a lease with Cuba since 1903, as modified in 1934. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, T.S. No. 418 (6 Bevans 1113) (“1903 Lease“); Relations With Cuba, May 9, 1934, U.S.-Cuba, T.S. No. 866 (6 Bevans 1161) (“1934 Lease“). In the 1903 Lease, “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba” over the naval base. 1903 Lease, art. III. The term of the lease is indefinite. 1903 Lease, art. I; 1934 Lease, art. III (“So long as the United States of America shall not abandon the said naval station at Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has . . . .“).
The detainees think criminal cases involving aliens and United States citizens for activities at Guantanamo Bay support their position. But those cases arose under the special maritime and territorial
The text of the leases, quoted above, shows that Cuba - not the United States - has sovereignty over Guantanamo Bay. This is the conclusion of Cuban Am. Bar Ass‘n v. Christopher, 43 F.3d 1412 (11th Cir. 1995). The Eleventh Circuit there rejected the argument - which the detainees make in this case - that with respect to Guantanamo Bay “‘control and jurisdiction’ is equivalent to sovereignty.” Id. at 1425. The Supreme Court reached the same conclusion in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381, 69 S.Ct. 140, 142-43, 93 L.Ed. 76 (1948). In holding that a naval base in Bermuda, controlled by the United States under a lease with Great Britain, was outside United States sovereignty, the Court took notice of the lease with Cuba for the Guantanamo Bay Naval Base and the fact that it granted the United States “substantially the same rights as it has in the Bermuda lease.” Id. at 383, 69 S.Ct. at 143. The “determination of sovereignty over an area,” the Court held, “is for the legislative and executive departments.” Id. at 380, 69 S.Ct. at 142. The contrary decision of the Second Circuit, on which the detainees rely - Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992), vacated as moot, Sale v. Haitian Centers Council, Inc., 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993) - has no precedential value because the Supreme Court vacated it. The decision was, in any event, at odds with the Supreme Court‘s reasoning not only in Vermilya-Brown, but also in United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949). The Second Circuit‘s result rested in very large measure on its extraterritorial application of the Fifth Amendment to non-resident aliens, see 969 F.2d at 1342-43, a position we rejected in People‘s Mojahedin Org. v. Dep‘t of State, 182 F.3d at 22, and in Harbury v. Deutch, 233 F.3d at 604, and a position we reject again today. And the Second Circuit thought it important that the United States controlled Guantanamo Bay. 969 F.2d at 1342-44. But under Eisentrager, control is surely not the test. Our military forces may have control over the naval base at Guantanamo, but our military forces also had control over the Landsberg prison in Germany.
We also disagree with the detainees that the
As against this the detainees point to Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977). After World War II, the United Nations designated the United States as administrator of the Trust Territory of Micronesia. Id. at 612. No country had sovereignty over the region, but the court treated Micronesia as if it were a territory of the United States, over which Congress could and did exercise its power under
III.
In addition to seeking relief explicitly in the nature of habeas corpus, the detainees sued for injunctions and declaratory judgments under the Alien Tort Act,
At the time of
IV.
We have considered and rejected the other arguments the detainees have made to the court. The judgment of the district court dismissing the complaint in No. 02-5251 and the petitions for writs of habeas corpus in Nos. 02-5284 and 02-5288 for lack of jurisdiction is
Affirmed.*
RANDOLPH, Circuit Judge, concurring:
I write separately to add two other grounds for rejecting the detainees’ non-habeas claims. But first some words are in order regarding the Alien Tort Act,
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
Three courts of appeals have decided that § 1350 not only provides a federal forum but also creates a cause of action for violations of the “law of nations.” The Second Circuit, in the decision launching this development, held first, that § 1350 conferred jurisdiction over an action by citizens of Paraguay against another citizen of that country for torts allegedly committed in Paraguay; and second, that “customary international law” is part of federal common law. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). The same court of appeals later reiterated that § 1350 provided jurisdiction and gave aliens - in this instance, Muslim and Croat citizens of Bosnia-Herzegovina - a cause of action against the leader of the Bosnia Serbs for violations of “the law of nations” and treaties. Kadic v. Karadzic, 70 F.3d 232, 241-44 (2d Cir. 1995); see Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 92-93 (2d Cir. 2000). The Ninth Circuit followed suit, holding that § 1350 gave a district court jurisdiction over the estate of the former Philippine President Marcos although all plaintiffs and defendants were Philippine nationals and although the torts, alleged to violate international law, occurred entirely in the Philippines. Trajano v. Marcos (In re Estate of Ferdinand E. Marcos Human Rights Litigation), 978 F.2d 493, 499 (9th Cir. 1992); see also Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos, Human Rights Litigation), 25 F.3d 1467, 1473 (9th Cir. 1994); Martinez v. City of Los Angeles, 141 F.3d 1373, 1383-84 (9th Cir. 1998). The Eleventh Circuit joined
The meaning of § 1350 has been an open question in our court. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 777 (D.C. Cir. 1984) (Edwards, J., concurring); id. at 800 (Bork, J., concurring); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-07 (D.C. Cir. 1985). But what § 1350 does not mean has been decided. In the Tel-Oren case both Judge Bork and Judge Robb, in their separate concurring opinions, rejected the Second Circuit‘s Filartiga decision, Judge Bork on the ground that § 1350 does not create a cause of action, Judge Robb on the ground that Filartiga is “fundamentally at odds with the reality of the international structure and with the role of United States courts within that structure.” See 726 F.2d at 801 (Bork, J.); id. at 826 n. 5 (Robb, J.). Since then some of the opinions following Filartiga maintain that Congress ratified its interpretation of § 1350. See, e.g., Kadic, 70 F.3d at 241; Hilao, 25 F.3d at 1475; Abebe-Jira, 72 F.3d at 848; see also William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 HASTINGS INT‘L & COMP. L.REV. 221, 224, 256 (1996). The ratification argument rests on enactment of the Torture Victim Protection Act of 1991, which provides a cause of action for damages to anyone - aliens and citizens alike - who suffered torture anywhere in the world at the hands of any individual acting under the law of any foreign nation.
The detainees, or at least some of them, nevertheless have urged us to follow the Filartiga line of cases. I see a number of problems in doing so, in addition to those mentioned by Judges Bork and Robb in Tel-Oren. To hold that the Alien Tort Act creates a cause of action for treaty violations, as the Filartiga decisions indicate, would be to grant aliens greater rights in the nation‘s courts than American citizens enjoy. Treaties do not generally create rights privately enforceable in the courts. Without authorizing legislation, individuals may sue for treaty violations only if the treaty is self-executing. See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829) (Marshall, C.J.); McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1107 (D.C. Cir. 2001); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 n. 1 (D.C. Cir. 1994); Holmes v. Laird, 459 F.2d 1211, 1220 (D.C. Cir. 1972); Tel-Oren, 726 F.2d at 808-10 (Bork, J.,
Filartiga‘s theory that federal common law incorporates customary international law also raises many issues. The theory was necessary to sustain the constitutionality of § 1350 as the Second Circuit interpreted and applied it. Early in our history the Supreme Court held unconstitutional, in violation of
For one thing,
As to the history of the Alien Tort Act, Judge Friendly wrote: this “old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9,
the district courts . . . shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.
In view of my doubts about Filartiga, and the Tel-Oren majority‘s rejection of it, we might go ahead in this case and decide what § 1350 does mean. But it is unnecessary to do so, not only because Eisentrager disposes of the cases, but also because the detainees’ treaty and international law claims are barred by sovereign immunity. Before explaining why, I need to add a disclaimer. At oral argument, the question arose whether next friend status may be recognized for suits under § 1350. “Some courts have permitted ‘next friends’ to prosecute actions outside the habeas corpus context on behalf of infants, other minors, and adult mental incompetents.” Whitmore v. Arkansas, 495 U.S. 149, 162 n. 4, 110 S.Ct. 1717, 1727 n. 4, 109 L.Ed.2d 135 (1990). Here, the argument for the next friend device is that the detainees are allegedly barred from talking with anyone about bringing lawsuits on their behalf. The parties have not briefed the questions this argument raises and I express no opinion on its validity.
The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep‘t of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 690-91, 142 L.Ed.2d 718 (1999). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The detainees therefore rely on the waiver provision in the Administrative Procedure Act,
Although relying on the APA‘s waiver for agencies, the detainees do not identify which “agency” of the United States they have in mind. They have sued the President in each case, but the President is not an “agency” under the APA and the waiver of sovereign immunity thus does not apply to him. See Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S.Ct. 2767, 2775-76, 120 L.Ed.2d 636 (1992); Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This leaves the military. The APA specifically excludes from its definition of “agency” certain functions, among which is “military authority exercised in the field in time of war or in occupied territory.”
Each of the detainees, according to their pleadings, was taken into custody by American armed forces “in the field in
I would therefore hold that the detainees cannot invoke the APA‘s waiver of sovereign immunity and that the district court correctly dismissed their claims under the Alien Tort Act for this additional reason.
I would also hold that the judicial review provisions of the APA, including the waiver of sovereign immunity, do not apply because the military decisions challenged here are “committed to agency discretion by law.”