Abdul Ali v. Donald Trump ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2019 Decided May 15, 2020
No. 18-5297
ABDUL RAZAK ALI, DETAINEE,
APPELLANT
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01020)
Shayana D. Kadidal argued the cause for appellant. With
him on the briefs were J. Wells Dixon, Pardiss Kebriaei, Baher
Azmy, and H. Candace Gorman.
Anil Vassanji was on the brief for amicus curiae Professor
Eric Janus in support of petitioner-appellant.
Thomas Anthony Durkin and George M. Clarke III were
on the brief for amici curiae Tofiq Nasser Awad Al Bihani
(ISN 893) and Abdul Latif Nasser (ISN 244) supporting
appellant.
Brian E. Foster was on the brief for amicus curiae Human
Rights First in support of petitioner-appellant.
2
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Hashim M. Mooppan, Deputy Assistant Attorney General, and
Michael Shih, Attorney. Sonia M. Carson, Attorney, entered
an appearance.
Before: ROGERS and MILLETT, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
Opinion concurring in the judgment filed by Senior
Circuit Judge RANDOLPH.
MILLETT, Circuit Judge: The United States has detained
appellant Abdul Razak Ali, an Algerian national, at the
Guantanamo Bay Naval Base in Cuba since June 2002. In this
appeal, Ali asks the court to hold that the Fifth Amendment’s
Due Process Clause categorically applies in full to detainees at
Guantanamo Bay, and that his ongoing detention violates both
the procedural and substantive aspects of the Due Process
Clause. Those broad arguments are foreclosed by circuit
precedent. To be sure, whether and which particular aspects of
the Due Process Clause apply to detainees at Guantanamo Bay
largely remain open questions in this circuit. So too does the
question of what procedural protections the Suspension Clause
requires. But Ali has eschewed any such calibrated or as-
applied constitutional arguments in this case. For those
reasons, the district court’s denial of Ali’s petition for a writ of
habeas corpus is affirmed.
3
I
A
Shortly after the September 11, 2001 terrorist attacks,
Congress passed the Authorization for Use of Military Force
(“AUMF”), Pub. L. No. 107-40, 115 Stat. 224 (2001). That
law empowers the President “to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001[.]” Id. § 2(a), 115 Stat. at 224. This includes the
detention of “those who are part of forces associated with Al
Qaeda or the Taliban[.]” Al-Madhwani v. Obama, 642 F.3d
1071, 1073–1074 (D.C. Cir. 2011) (quoting Al-Bihani v.
Obama, 590 F.3d 866, 872 (D.C. Cir. 2010)); see also Hamdi
v. Rumsfeld, 542 U.S. 507, 516, 518–519 (2004) (plurality
opinion).
Congress subsequently passed the National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81,
125 Stat. 1298 (2011). That Act “affirms that the authority of
the President to use all necessary and appropriate force
pursuant to the [AUMF] includes the authority for the Armed
Forces of the United States to detain covered persons” until
“the end of the hostilities authorized by the [AUMF].” Id.
§ 1021(a), (c)(1), 125 Stat. at 1562. The National Defense
Authorization Act defines “covered persons” to include those
“who planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored those
responsible for those attacks,” or who were “part of or
substantially supported al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States
or its coalition partners[.]” Id. § 1021(b), 125 Stat. at 1562.
4
B
Ali is an Algerian citizen. He was captured by United
States and Pakistani forces in March 2002 during a raid of a
four-bedroom guesthouse in Faisalabad, Pakistan. Ali v.
Obama (Ali II), 736 F.3d 542, 543 (D.C. Cir. 2013). Ali kept
troubling company there. At the time of the raid, he was living
with the al Qaeda facilitator Abu Zubaydah and several of
Zubaydah’s compatriots, including “four former trainers from
a terrorist training camp in Afghanistan, multiple experts in
explosives, and an individual who had fought alongside the
Taliban.” Id. The guesthouse also contained “a device
typically used to assemble remote bombing devices” and
“documents bearing the designation ‘al Qaeda[.]’” Id.
In June 2002, the United States transferred Ali to the Naval
Base at Guantanamo Bay. Ali II, 736 F.3d at 543. A few years
later, Ali filed a petition for habeas corpus in the United States
District Court for the District of Columbia challenging his
designation and detention as an enemy combatant. Ali v.
Obama (Ali I), 741 F. Supp. 2d 19, 21 (D.D.C. 2011). The
district court denied the petition. Id. at 27. Applying a
preponderance of the evidence standard, the district court
concluded that Ali was a member of Zubaydah’s forces, which
the district court found was an “associated force” of al Qaeda
and the Taliban within the meaning of the AUMF. Id. at 25,
27; see also Pub. L. No. 107-40, § 2(a), 115 Stat. at 224. The
district court further found that Ali’s capture in the same
guesthouse as Zubaydah, combined with evidence that Ali was
taking English lessons through one of Zubaydah’s training
programs while there, was enough to establish his membership
in that force. Ali I, 741 F. Supp. 2d at 25–26. The court also
credited government evidence “placing [Ali] with Abu
Zubaydah’s force in various places in Afghanistan prior to his
stay at the Faisalabad guesthouse.” Id. at 26. And Ali’s
5
membership in Zubaydah’s force was “corroborated further by
[his] own admission—when he was first interrogated—that he
had gone to Afghanistan to fight in the jihad against the U.S.
and its Allied forces.” Id.
This court affirmed, concluding that Ali’s presence in the
“terrorist guesthouse” alongside other terrorist combatants
strongly supported the district court’s finding that he was an
enemy combatant. Ali II, 736 F.3d at 545–546. Among other
things, Ali’s presence in the company of senior leaders of
Zubaydah’s force, the duration of Ali’s stay, his participation
in English lessons while there, and the presence of documents
and equipment associated with terrorist activity together
provided weighty and substantial grounds for finding Ali to be
an enemy combatant. Id. at 546.
On January 11, 2018, Ali joined several other Guantanamo
detainees in filing renewed habeas petitions arguing that their
continued detention violated the Due Process Clause and the
AUMF. The district court subsequently denied Ali’s habeas
petition.
First, the district court held that detainees at Guantanamo
Bay are not entitled to the protections of the Due Process
Clause. The court also held that, even assuming the Due
Process Clause applied, Ali’s rights were not violated. The
court reasoned that circuit precedent foreclosed Ali’s
procedural arguments that (1) the government must show by
clear and convincing evidence that he remains a threat to
national security, (2) government evidence is not entitled to a
presumption of regularity, and (3) hearsay evidence should be
inadmissible in AUMF detention proceedings. The court also
rejected Ali’s substantive due process argument that his
continuing detention no longer served its ostensible purpose.
6
Second, the district court rejected Ali’s argument that his
continuing detention exceeds the scope of the AUMF. The
district court read the AUMF to authorize the detention of
enemy combatants until the hostilities authorized by that
statute cease and found that hostilities against al Qaeda and the
Taliban were ongoing.
Ali appealed, seeking initial consideration en banc. This
court denied initial en banc review. Ali v. Trump, No. 18-5297,
2019 WL 850757 (D.C. Cir. Feb. 22, 2019).
II
We review the district court’s factual determinations for
clear error and its ultimate decision to grant or deny habeas
relief de novo. Latif v. Obama, 677 F.3d 1175, 1178 (D.C. Cir.
2012); see also Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.
Cir. 2010).
A
The district court’s decision that the Due Process Clause
is categorically inapplicable to detainees at Guantanamo Bay
was misplaced. See Qassim v. Trump, 927 F.3d 522, 524 (D.C.
Cir. 2019). The Supreme Court’s decision in Boumediene v.
Bush, 553 U.S. 723 (2008), unequivocally held that
Guantanamo Bay detainees must be afforded those procedures
necessary to ensure “meaningful review” of the lawfulness of
their detention, id. at 783. See Qassim, 927 F.3d at 524. In
particular, detainees are constitutionally entitled to “those
‘procedural protections’” that are “necessary (i) to ‘rebut the
factual basis for the Government’s assertion that [the detainee]
is an enemy combatant’; (ii) to give the prisoner ‘a meaningful
opportunity to demonstrate that he is being held pursuant to the
erroneous application or interpretation of relevant law’; and
7
(iii) to create a record that will support ‘meaningful review’”
by federal courts. Id. at 528–529 (formatting modified)
(quoting Boumediene, 553 U.S. at 779, 783).1
In identifying those constitutional protections for
detainees, the Supreme Court pointed both to the
Constitution’s guarantee of habeas corpus, U.S. CONST. art. I,
§ 9, cl. 2 (commonly known as the Suspension Clause), and the
Due Process Clause. Boumediene, 553 U.S. at 771–792; see
Qassim, 927 F.3d at 529.
Circuit precedent has not yet comprehensively resolved
which “constitutional procedural protections apply to the
adjudication of detainee habeas corpus petitions,” and whether
those “rights are housed” in the Due Process Clause, the
Suspension Clause, or both. Qassim, 927 F.3d at 530.
In this case, Ali has chosen not to ground any of his claims
for procedural protections in the Suspension Clause. So that
issue is not before us. Instead, Ali’s main argument puts all of
his eggs in one constitutional basket. He argues that the Due
Process Clause’s procedural and substantive requirements
apply wholesale, without any qualifications, to habeas corpus
petitions filed by all Guantanamo detainees. Ali Br. 12 (“The
Due Process Clause [a]pplies at Guantánamo[.]”); id. 13–14
(“After Boumediene, it inescapably follows that the Due
Process Clause also applies—in the same measure as the
Suspension Clause—at Guantánamo to constrain certain
executive branch actions.”); see also Ali Reply 12–13; Oral
1
This opinion’s references to detainees at Guantanamo Bay and the
constitutional protections they enjoy speaks only to foreign national
detainees, who compose the Naval Base’s current population in
detention. We do not address what protections would apply to
United States citizens or those with similar legal ties to the United
States were they to be detained at Guantanamo Bay.
8
Arg. Tr. 4:6–12, 7:11–15, 13:5–7 (in seeking new procedural
protections, counsel is “absolutely” “asking for a broader rule”
than one that just resolves Ali’s case); id. 20:2–21:6.2
That argument sweeps too far.
For starters, the argument is in substantial tension with the
Supreme Court’s more calibrated approach in Boumediene,
which tied the constitutional protections afforded to
Guantanamo Bay detainees’ habeas corpus proceedings to their
role in vindicating the constitutional right to the Great Writ and
the judicial role in checking Executive Branch overreach. See
553 U.S. at 798 (“[P]etitioners may invoke the fundamental
procedural protections of habeas corpus.”); id. at 779–783,
793–795. The court stressed that the scope of constitutional
protections must “turn on objective factors and practical
concerns, not formalism.” Id. at 764. Yet Ali argues for only
a formal and unyielding line.
Ali’s argument that the Due Process Clause’s substantive
protections apply with full force to all detainees at Guantanamo
Bay also runs crosswise with this court’s decision in Kiyemba
v. Obama, which held that, for Guantanamo Bay detainees, the
claimed substantive due process right to release into the United
States had no purchase because a noncitizen who seeks
admission to the United States generally “may not do so under
any claim of right.” 555 F.3d 1022, 1027 (D.C. Cir. 2009),
2
Ali at one point briefly states that “at least some of the protections
of the Due Process Clause must also reach Guantánamo because
there are no practical barriers that would apply[.]” Ali Br. 13. He
does not develop this argument, though, and we will not make new
constitutional arguments for counsel. See Government of Manitoba
v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“A party forfeits
an argument by mentioning it only in the most skeletal way[.]”)
(formatting modified).
9
vacated and remanded, 559 U.S. 131, reinstated in relevant
part, 605 F.3d 1046, 1047–1048 (D.C. Cir. 2010). That case
refutes Ali’s claim that the substantive protections of the Due
Process Clause apply across the board to all Guantanamo Bay
detainees. And Ali has abstained from pressing any more
gradated or as-applied Due Process Clause argument here.
In sum, Boumediene and Qassim teach that the
determination of what constitutional procedural protections
govern the adjudication of habeas corpus petitions from
Guantanamo detainees should be analyzed on an issue-by-issue
basis, applying Boumediene’s functional approach. The type
of sweeping and global application asserted by Ali fails to
account for the unique context and balancing of interests that
Boumediene requires when reviewing the detention of foreign
nationals captured during ongoing hostilities.
B
To the extent that Ali focuses on particular categories of
constitutional objections, the Due Process Clause is of no help
to him. See Association of American R.Rs. v. United States
Dep’t of Transp., 896 F.3d 539, 544 (D.C. Cir. 2018)
(“[C]ourts must choose the narrowest constitutional path to
decision.”).
1
Ali argues that his continued detention for more than
seventeen years violates substantive due process. While Ali’s
detention has been quite lengthy, under binding circuit
precedent the Due Process Clause’s substantive protections
would offer him no help.
10
Among other things, the substantive component of the Due
Process Clause “bars certain arbitrary, wrongful government
actions regardless of the fairness of the procedures used to
implement them.” Foucha v. Louisiana, 504 U.S. 71, 80
(1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
But only government action that is “so egregious, so
outrageous, that it may fairly be said to shock the contemporary
conscience” qualifies as arbitrary for the purposes of
substantive due process. Estate of Phillips v. District of
Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998)).
Ali contends that his ongoing detention violates
substantive due process in two ways. First, he argues that his
continued detention is driven by a new blanket and punitive
policy against releasing detainees and, as such, is “untethered
to any ongoing, individualized purpose to detain him.” Ali Br.
20–21. Second, Ali argues that his “[p]erpetual detention”
based on an “eighteen-day stay in a guest-house” shocks the
conscience. Ali Br. 23. Neither argument succeeds.
First, Ali’s detention is long because the armed conflict
out of which it arises has been long, continuing to the present
day. See Letter to Congressional Leaders on the Global
Deployment of United States Combat-Equipped Armed
Forces, 2018 DAILY COMP. PRES. DOC. NO. 00416, at 2 (June
8, 2018) (“The United States remains in an armed conflict,
including in Afghanistan and against the Taliban, and active
hostilities remain ongoing.”). Given that, Ali’s detention still
serves the established law-of-war purpose of “prevent[ing]
captured individuals from returning to the field of battle and
taking up arms once again.” See Hamdi, 542 U.S. at 518, 521
(plurality opinion) (“[W]e understand Congress’ grant of
authority for the use of ‘necessary and appropriate force’ to
include the authority to detain for the duration of the relevant
11
conflict, and our understanding is based on longstanding law-
of-war principles.”); see also Al-Alwi v. Trump, 901 F.3d 294,
297–298 (D.C. Cir. 2018).
Ali does not dispute that hostilities authorized by the
AUMF are ongoing. Oral Arg. Tr. 22:19–23. And although
the AUMF was initially enacted in 2001, Congress reaffirmed
the government’s interest in detaining enemy combatants by
passing the National Defense Authorization Act in 2011. Pub.
L. No. 112-81, § 1021(a), (c)(1), 125 Stat. at 1562 (affirming
“that the authority of the President to use all necessary and
appropriate force pursuant to the [AUMF] includes the
authority for the Armed Forces of the United States to detain
covered persons” until the end of the hostilities). Whatever
subjective motivations Ali might impute to the government, its
original and legitimate purpose for detaining him—recognized
by the law of war and Supreme Court precedent—persists.
On top of that, Ali has little ground to stand on in claiming
that time has dissipated the threat he poses. The Guantanamo
Bay Periodic Review Board has specifically reviewed Ali’s
detention no less than eight times to determine whether his
continued detention remains necessary to protect against a
significant security threat to the United States. See generally
Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (March 7, 2011)
(establishing the Periodic Review Board). And each time the
Periodic Review Board has recommended continued detention
because of the threat his release would pose.3
3
See Periodic Review Board, Unclassified Summary of Final
Determination for ISN 685 (July 6, 2016), https://www.prs.mil
/Portals/60/Documents/ISN685/20160706_U_ISN_685_FINAL_D
ETERMINATION.pdf (initial full review); Periodic Review Board,
File Review—Said bin Brahim bin Umran Bakush (AG-685) (Feb.
3, 2017), https://www.prs.mil/Portals/60/Documents/ISN685
/FileReview/170104_U_ISN685_FINAL_DETERMINATION_PU
12
In its most recent full review of Ali’s detention, the
Periodic Review Board “determined that continued law of war
detention of the detainee remains necessary to protect against
a continuing significant threat to the security of the United
States.” See Periodic Review Board, Unclassified Summary of
Final Determination for ISN 685 (Feb. 28, 2019),
https://www.prs.mil/Portals/60/Documents/ISN685/Subseque
ntReview1/20190228_U_ISN_685_FINAL_DETERMINATI
ON_PUBLIC.pdf (second full review). In reaching this
conclusion, the Board “considered the detainee’s elevated
BLIC_V1.pdf (first file review); Periodic Review Board, File
Review—Said bin Brahim bin Umran Bakush (AG-685) (Aug. 2,
2017), https://www.prs.mil/Portals/60/Documents/ISN685
/FileReview2/20170802_U_ISN_685_FINAL_DETERMINATION
_MFR_PUBLIC.pdf (second file review); Periodic Review Board,
File Review—Said bin Brahim bin Umran Bakush (AG-685)
(March. 18, 2018), https://www.prs.mil/Portals/60/Documents
/ISN685/FileReview3/20180216_U_ISN_685_FINAL_DETERMI
NATION_MFR_PUBLIC.pdf (third file review); Periodic Review
Board, File Review—Said bin Brahim bin Umran Bakush (AG-685)
(Aug. 13, 2018), https://www.prs.mil/Portals/60/Documents
/ISN685/FileReview4/20180717_U_FOUO_ISN685_MFR_PRB_
U_PR.pdf (fourth file review); Periodic Review Board, Unclassified
Summary of Final Determination for ISN 685 (Feb. 28, 2019),
https://www.prs.mil/Portals/60/Documents/ISN685/SubsequentRev
iew1/20190228_U_ISN_685_FINAL_DETERMINATION_PUBLI
C.pdf (second full review); Periodic Review Board, File Review—
Said bin Brahim bin Umran Bakush (AG-685) (Sept. 13, 2019),
https://www.prs.mil/Portals/60/Documents/ISN685/FileReview5/20
190719_U_ISN_685_UNCLASSIFIED_MFR.pdf (fifth file
review); Periodic Review Board, File Review—Said bin Brahim bin
Umran Bakush (AG-685) (Feb. 20, 2020),
https://www.prs.mil/Portals/60/Documents/ISN685/FileReview6/20
0116_U_FOUO_ISN685_MFR_re_Sixth_File_Review_UPR.pdf
(sixth file review).
13
threat profile as evidenced by his prior roles in Afghanistan and
prior association[,] [t]he Board’s inability to assess the
detainee’s current threat level due to the detainee’s refusal to
participate in meetings with his representative, the lack of
submission of any new materials by the detainee and the
detainee’s decision not to attend the hearing.” Id.
And in its most recent review of Ali’s case file in January
2020, the Periodic Review Board determined “by consensus”
that “no significant question [was] raised as to whether [Ali’s]
continued detention [was] warranted.” Periodic Review
Board, File Review—Said bin Brahim bin Umran Bakush
(AG-685) (Feb. 20, 2020), https://www.prs.mil/Portals/60
/Documents/ISN685/FileReview6/200116_U_FOUO_ISN685
_MFR_re_Sixth_File_Review_UPR.pdf (sixth file review).4
Second, the fact that hostilities have endured for a long
time, without more, does not render the government’s
continued detention of Ali a shock to the conscience, in light
of the dangers the Periodic Review Board has found to be
associated with his release.
Ali attempts to downplay his connection to Zubaydah’s
force by characterizing it as an “eighteen-day stay in a guest-
house.” Ali Br. 23. But that is a long time to be in the company
of senior terrorist leaders. Nor does Ali dispute that he was
actively studying in their English program while there,
acquiring a skill that would have equipped him to harm the
United States. See Ali II, 736 F.3d at 548 (“[T]he record
included evidence that leaders of Abu Zubaydah’s force
4
Because Ali has repeatedly been found to be unsuitable for
relief, this case does not present the question of what protections
might apply to a detainee whom the Board has determined to be
suitable for release, yet who continues to be detained.
14
provided English language training to help prepare their
members to better infiltrate English-speaking areas and launch
successful terrorist attacks.”). Finally, Ali has provided no
sound basis for concluding that either his ability or his desire
to rejoin opposing forces has diminished.
2
Ali also argues that, as a matter of procedural due process,
the extended duration of the government’s detention of
detainees at Guantanamo Bay requires the government to
show, by clear and convincing evidence, that continued
detention is necessary to avoid specific, articulable dangers.
He further contends that the Due Process Clause precludes the
use of hearsay evidence and bars the presumption of regularity
with respect to the government’s evidence. Circuit precedent
forecloses each of those arguments.
To begin with, we have repeatedly held that, to uphold an
order of detention, the individual’s status as an enemy
combatant need only be proved by a preponderance of the
evidence. See, e.g., Uthman v. Obama, 637 F.3d 400, 403 n.3
(D.C. Cir. 2011) (“Our cases have stated that the
preponderance of the evidence standard is constitutionally
sufficient and have left open whether a lower standard might
be adequate to satisfy the Constitution’s requirements for
wartime detention.”); Awad v. Obama, 608 F.3d 1, 11 (D.C.
Cir. 2010) (“Lest there be any further misunderstandings, let us
be absolutely clear. A preponderance of the evidence standard
satisfies constitutional requirements in considering a habeas
petition from a detainee held pursuant to the AUMF.”); see also
Al-Bihani, 590 F.3d at 878.
15
The same holds true for the use of hearsay evidence during
habeas corpus and other detention proceedings. See Al-Bihani,
590 F.3d at 879.
As for the presumption of regularity, it is not at all clear
that the presumption has even been used in Ali’s case. See
Ali I, 741 F. Supp. 2d at 25–27 (setting forth the district court’s
factual findings and its conclusion that Ali was a member of
Zubaydah’s force); see also Barhoumi, 609 F.3d at 423 (“We
review the district court’s findings of fact for clear error[.]”).
In any event, this court’s cases have also expressly granted a
presumption of regularity to certain government evidence. See
Latif v. Obama, 666 F.3d 746, 755 (D.C. Cir. 2011).
The bottom line is that we are not at liberty to rewrite
circuit precedent in the way Ali desires. See LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (“One
three-judge panel * * * does not have the authority to overrule
another three-judge panel of the court.”).
Ali responds that, despite these precedents, a new
balancing under Mathews v. Eldridge, 424 U.S. 319 (1976), is
necessary because, as his detention drags on, the government’s
asserted security interest in his continued detention grows
weaker while his liberty interest grows stronger. See Rasul v.
Bush, 542 U.S. 466, 488 (2004) (Kennedy, J., concurring)
(“[A]s the period of detention stretches from months to years,
the case for continued detention to meet military exigencies
becomes weaker.”). In other words, according to Ali, a new
balancing analysis is in order because any assumption that
wartime detention will be temporary “has long since
dissipated” given the prolonged hostilities. Ali Br. 25.
That argument does not extract Ali from the force of
binding circuit precedent. In developing the procedures
16
applicable to AUMF challenges, this court contemplated that
detentions could last for the duration of hostilities. See
Uthman, 637 F.3d at 402 (“The AUMF, among other things,
authorizes the Executive Branch to detain for the duration of
hostilities those individuals who are part of al Qaeda or the
Taliban.”); Awad, 608 F.3d at 11 (explaining that the
government’s “authority to detain an enemy combatant is not
dependent on whether an individual would pose a threat to the
United States or its allies if released but rather upon the
continuation of hostilities”). The length for which hostilities
might continue was uncertain then and continues to be
uncertain now. And this court’s ruling on Ali’s initial habeas
petition expressly recognized that Ali may be detained for an
extended, and uncertain, period of time:
We are of course aware that this is a long war with no
end in sight. We understand Ali’s concern that his
membership in Zubaydah’s force, even if it justified
detention as an enemy combatant for some period of
time, does not justify a “lifetime detention.” But the
2001 AUMF does not have a time limit, and the
Constitution allows detention of enemy combatants
for the duration of hostilities.
Ali II, 736 F.3d at 552 (emphasis added) (citation omitted).
Indeed, Ali agrees that, if the hostilities covered by the
AUMF were a more traditional type of war that continued for
this same length of time, there would be no substantive due
process objection to continued detention. Oral Arg. Tr. 21:15–
19. Yet Ali cites no authority suggesting that the form of
hostilities that enemy combatants undertake changes the law
of war’s authorization of their continued detention, especially
when, as here, the government has found that the threat Ali
poses continues.
17
C
Finally, Ali argues that this court may avoid the
substantive and procedural due process issues altogether by
applying the canon of constitutional avoidance and construing
the AUMF to limit the duration of detentions. See, e.g.,
Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (“[I]t is a cardinal
principle of statutory interpretation * * * that when an Act of
Congress raises a serious doubt as to its constitutionality,”
courts must “ascertain whether a construction of the statute is
fairly possible by which the question may be avoided.”)
(formatting modified). But because the specific constitutional
claims that Ali presses have already been considered and
rejected by circuit precedent, there are no constitutional rulings
to be avoided.
III
For all of those reasons, the district court’s denial of Ali’s
petition for a writ of habeas corpus is affirmed.
So ordered.
RANDOLPH, Senior Circuit Judge: I concur only in the
judgment. I do so because Qassim v. Trump, 927 F.3d 522 (D.C.
Cir. 2019), on which the majority relies, cannot be reconciled
with the law of this circuit or with the Supreme Court’s
interpretation of the Constitution.
Qassim announced that “Circuit precedent leaves open
and unresolved” the question whether detainees at the
Guantanamo Bay Naval Station in Cuba are entitled to the
“procedural” due process protections of the Fifth Amendment
even though circuit precedent foreclosed “substantive” due
process claims. 927 F.3d at 530. That depiction of circuit
precedent was not accurate and, more important, it contradicted
decisions of the Supreme Court. Rather than “open and
unresolved,” it is “well established” that the protections of the
Fifth Amendment’s Due Process Clause “do not extend to aliens
outside the territorial boundaries” of the United States, including
those held at Guantanamo Bay. Zadvydas v. Davis, 533 U.S.
678, 693 (2001).
To explain my position I begin where Qassim and
today’s majority opinion should have begun – with the Supreme
Court’s interpretation of the Due Process Clause. I follow a
well-marked path. See Qassim v. Trump, 938 F.3d 375, 376
(D.C. Cir. 2019) (Henderson and Rao, JJ. dissenting from denial
of en banc review); see also Hernandez v. United States, 785
F.3d 117, 125-28 (5th Cir. 2015) (Jones, J. concurring).1
1
The Fifth Circuit’s en banc decision in Hernandez was
vacated on other grounds by the Supreme Court. See Hernandez v.
Mesa, 137 S. Ct. 2003. On remand, the Fifth Circuit (en banc) largely
reiterated the relevant portions of Judge Jones’s 2015 concurring
opinion. See, e.g., 885 F.3d 811, 817 (5th Cir. 2018) (noting that “no
federal circuit has extended the holding of Boumediene [v. Bush, 553
U.S. 723 (2008)] . . . to other constitutional provisions). This most
recent Hernandez Fifth Circuit decision was affirmed by the Supreme
Court. See Hernandez v. Mesa, 140 S. Ct. 735 (2020).
2
1. Johnson v. Eisentrager, 339 U.S. 763 (1950)
The Supreme Court’s seminal decision in Eisentrager,
rendered in the twilight of World War II, interpreted the Due
Process Clause of the Fifth Amendment to the Constitution. That
well known Clause states: “nor shall any person . . . be deprived
of life, liberty, or property, without due process of law.” U.S.
Const. amend. V (emphasis added).
The lower court in Eisentrager – which happened to be
the D.C. Circuit – ruled that “any person” in the Due Process
Clause included “an enemy alien deprived of his liberty” by the
United States “anywhere in the world.” 339 U.S. at 767, 782.2
The Supreme Court in Eisentrager firmly rejected that
interpretation. Eisentrager’s holding was clear, it was precise,
and it was contrary to Qassim: a nonresident alien enemy
detained by the United States outside of our sovereign territory
was, the Court decided, not “any person” within the meaning of
the Fifth Amendment and therefore not entitled to the
protections of the Due Process Clause. Id. at 782-85.
The Qassim court paid no attention to the Supreme
Court’s interpretation of “any person” in the Fifth Amendment.
There is no good explanation for this omission. The Supreme
Court’s ruling made it irrelevant whether the alien’s claim was
one of “procedural” due process or “substantive” due process.
Under Eisentrager, it was the status of the individual as an alien
enemy held outside the United States, not the nature of his
claims, that barred application of the Due Process Clause. As I
will discuss in a moment, when the Supreme Court years later
2
See Eisentrager v. Forrestal, 174 F.2d 961, 963-65 (D.C.
Cir. 1949).
3
considered Eisentrager again, it put the case on precisely that
footing.
In light of Eisentrager, whether an alien enemy held at
Guantanamo Bay3 may invoke the Due Process Clause is not –
to use Qassim’s words – “open and unresolved.” Even so, the
Qassim panel insisted that its opinion “explains in detail its
consistency with” Eisentrager.4 It did nothing of the sort.
Qassim relegated Eisentrager to a footnote. The
footnote gave the case citation and appended a brief
parenthetical. The parenthetical was misleading. It described
Eisentrager as having decided “that enemy aliens engaged in
3
Guantanamo is not part of the sovereign territory of the
United States. The Detainee Treatment Act of 2005, Pub. L. No.
109–148, 119 Stat. 2680 (2005), so provides: “‘United States,’ when
used in a geographic sense . . . does not include the United States
Naval Station, Guantanamo Bay, Cuba.” Also, Guantanamo is not part
of the United States under the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(38).
Even if there were some doubt about Guantanamo Bay’s
status, “[w]ho is the sovereign, de jure or de facto, of a territory is not
a judicial, but is a political question, the determination of which by the
legislative and executive departments of any government conclusively
binds the judges.” Jones v. United States, 137 U.S. 202, 212 (1890),
quoted in Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)
and Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091
(2015). Thus, “determination of [American] sovereignty over an area
is for the legislative and executive departments.” Vermilya-Brown Co.
v. Connell, 335 U.S. 377, 380 (1948).
4
Qassim v. Trump, 938 F.3d 375, 376 (D.C. Cir. 2019)
(Millett, Pillard, and Edwards, JJ., concurring in denial of en banc
review).
4
hostile action against the United States have no immunity from
military trial.” 927 F.3d at 529 n.5. There is not a word about
the Supreme Court’s interpretation of “any person” in the Due
Process Clause. In today’s opinion, the majority does not even
cite Eisentrager, let alone explain how it can possibly be
squared with Qassim.
To sum up, Eisentrager’s holding gives the lie to
Qassim’s assertion that it was an open question whether
Guantanamo detainees were entitled to due process, procedural
or otherwise.5
Neither the Qassim opinion nor the majority opinion in
this case can be rationalized on the basis that Boumediene v.
Bush, 553 U.S. 723 (2008), rendered Eisentrager’s Fifth
Amendment holding a dead letter. First of all, before Qassim we
had already decided that Boumediene did not “disturb existing
law governing the extraterritorial reach of any constitutional
provisions, other than the Suspension Clause.” Rasul v. Myers,
563 F.3d 527, 529 (D.C. Cir. 2009) (per curiam). That is,
Boumediene was “‘explicitly confined’” to the Suspension
Clause and did not disturb “Eisentrager and its progeny.” Id. at
5
The executive branch has, since at least 2009, articulated the
procedures to be used for the review and disposition of Guantanamo
detainees. These Executive Orders appear to recognize that the Fifth
Amendment does not apply to the non-resident aliens held at the naval
station. See, e.g., Exec. Order 13492, 74 Fed. Reg. 4897-99 (no
mention of constitutional due process, but noting that individuals held
at Guantanamo “have the constitutional privilege of the writ of habeas
corpus”); Exec. Order 13567, 76 Fed. Reg. 13277 (establishing, “as
a discretionary matter, a process to review on a periodic basis the
executive branch’s continued, discretionary exercise of existing
detention authority in individual cases”) (emphasis added).
5
529. See also United States v. Bahlul, 840 F.3d 757, 796 (D.C.
Cir. 2016) (Millett, J.,concurring) (quoting Rasul).6
Perhaps the Qassim court believed that Boumediene
eroded Eisentrager’s precedential value because Boumediene
stated that “there are critical differences between Landsberg
Prison, circa 1950, and the United States Naval Station at
Guantanamo Bay in 2008.” 553 U.S. at 768. Boumediene added
that Guantanamo Bay “is no transient possession” and is in
“every practical sense” “within the constant jurisdiction of the
United States.” 553 U.S. at 768-69.
But Qassim made no attempt to distinguish Eisentrager
on this basis. More, Guantanamo Bay is not within the
sovereign territory of the United States, and its legal status is not
for the courts to decide. See note 5, supra. More still,
immediately after declaring that the naval station “is no transient
possession,” Boumediene once again made clear that the scope
of its opinion concerned only the Suspension Clause. See 553
U.S. at 769 (acknowledging that “there are costs to holding the
Suspension Clause applicable in a case of military detention
abroad” but distinguishing Eisentrager nonetheless).
Guantanamo’s status thus cannot be used as a basis for
expanding, sua sponte, the reach of the Fifth Amendment.
Second, even if Boumediene somehow put Eisentrager
into doubt, the Qassim court failed to heed the Supreme Court’s
warning that its “decisions remain binding precedent until we
see fit to reconsider them, regardless of whether subsequent
cases have raised doubts about their continuing vitality.” Hohn
6
The Ninth Circuit agrees. See Thuraissigiam v. U.S. Dep’t
of Homeland Security, 917 F.3d 1097, 1111-12 (9th Cir. 2019)
(“Boumediene itself clearly recognized the distinction between the
Fifth Amendment’s due process rights and the Suspension Clause”).
6
v. United States, 524 U.S. 236, 252–53 (1998). When a
Supreme Court decision “has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to th[e Supreme] Court the prerogative
of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also
id. at 486 (Stevens, J., dissenting); Agostini v. Felton, 521 U.S.
203, 237 (1997); see also id. at 258 (Ginsburg, J., dissenting);
State Oil Co. v. Khan, 522 U.S. 3, 9, 20 (1997); Thurston Motor
Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533 (1983) (per
curiam).7
2. United States v. Verdugo-Urquidez, 494 U.S. 259
(1990)
The ultimate issue in Verdugo-Urquidez was “whether
the Fourth Amendment applies to the search and seizure by the
United States of property that is owned by a nonresident alien
and located in a foreign country.” 494 U.S. at 261. Qassim was
not directly concerned with the Fourth Amendment and neither
7
Qassim and today’s majority opinion quote Boumediene’s
statement that the Suspension Clause requires that a record be made
to allow for “meaningful review.” See Qassim, 924 F.3d at 524
(quoting Boumediene, 553 U.S. at 783). This phrase did not confer
upon the lower federal courts a free-wheeling authority to disregard
Supreme Court precedent. The Court was not overruling any of its
cases outside the Suspension Clause. As then-Judge Kavanaugh put
it for our court, “[m]eaningful review in this context requires that a
court have ‘some authority to assess the sufficiency of the
Government’s evidence against the detainee’ and to ‘admit and
consider relevant exculpatory evidence’ that may be added to the
record by petitioners during review.” Al-Bihani v. Obama, 590 F.3d
866, 875 (D.C. Cir. 2010), quoting Boumediene, 553 U.S. at 786.
7
are we in this case. But Qassim should have been concerned
with the reasoning the Supreme Court used to decide that the
Fourth Amendment did not apply.
Verdugo-Urquidez discussed Eisentrager not in a
parenthetical in a footnote but in the text of the opinion.
Eisentrager, the Supreme Court wrote, “rejected the claim that
aliens are entitled to Fifth Amendment rights outside the
sovereign territory of the United States.” 494 U.S. at 269. To
the Supreme Court, “our rejection of the extraterritorial
application of the Fifth Amendment was emphatic,” 494 U.S. at
269. After quoting the Eisentrager opinion,8 the Verdugo-
Urquidez Court wrote this: “If such is true of the Fifth
Amendment, which speaks in the relatively universal term of
‘person,’ it would seem even more true with respect to the
Fourth Amendment, which applies to ‘the people.’” Id.
This portion of the Verdugo-Urquidez opinion was not
dicta. It was instead an intermediate step in the Court’s
reasoning. There was nothing extraneous about the Court’s
comparing the Fourth Amendment with Eisentrager’s
interpretation of the Fifth Amendment. This is why the Court in
a later case treated Verdugo-Urquidez as having “established”
that Fifth Amendment protections “are unavailable to aliens
outside our geographic borders.” Zadvydas v. Davis, 533 U.S.
8
The Court quoted this language from Eisentrager: “Such
extraterritorial application of organic law would have been so
significant an innovation in the practice of governments that, if
intended or apprehended, it could scarcely have failed to excite
contemporary comment. Not one word can be cited. No decision of
this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S.
244. None of the learned commentators on our Constitution has ever
hinted at it. The practice of every modern government is opposed to
it.” Eisentrager, 339 U.S. at 784.
8
678, 693 (2001).9 Even if one were to consider the Court’s Fifth
Amendment discussion as dicta,10 which it is not, Qassim cannot
be harmonized with Verdugo-Urquidez. Did Qassim even try to
distinguish Verdugo-Urquidez? It did not.
Qassim again relegated the Supreme Court’s opinion to
a footnote, giving the official case citation and attaching a
parenthetical stating: “Fourth Amendment protections do not
apply extraterritorially to a search conducted within a foreign
country of property belonging to a foreign citizen with no
voluntary connection to the United States.” 927 F.3d at 529 n.
5. And that was that. Qassim said not a word about the
Supreme Court’s analysis of the Due Process Clause or the
Court’s discussion of Eisentrager, even though both directly
impacted the issue before the Qassim court. The majority
opinion in this case follows suit.
3. Zadvydas v. Davis, 533 U.S. 678 (2001)
In Zadvydas, the Supreme Court stated that: “It is well
established that certain constitutional protections available to
persons inside the United States are unavailable to aliens outside
of our geographic borders.” 533 U.S. at 693. In support of this
9
See pp. 8-9 infra.
10
Harbury v, Deutch, 233 F.3d 596, 604 (D.C. Cir. 2000),
rev’d on other grounds sub nom. Christopher v. Harbury, 536 U.S.
403 (2002), held that even if the Fifth Amendment discussion in
Verdugo-Urquidez was “dicta,” “it is firm and considered dicta that
binds this court.” The court therefore ruled that the Due Process
Clause did not apply to “foreign nationals living abroad.” 233 F.3d at
602. As to the binding force of Verdugo-Urquidez’s analysis of the
Fifth Amendment, see also People’s Mojahedin Org. of Iran v. U.S.
Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999).
9
statement of constitutional law the Court (id.) cited two cases:
“See United States v. Verdugo-Urquidez, 494 U.S. 259, 269
(1990) (Fifth Amendment’s protections do not extend to aliens
outside the territorial boundaries); Johnson v. Eisentrager, 339
U.S. 763, 784 (1950) (same).”
How did Qassim respond to the Supreme Court’s recital
of this “well established” Fifth Amendment law? Once again
the answer is that the opinion did not respond. Instead, as it did
with Eisentrager and Verdugo-Urquidez, the Qassim court tried
to hide the ball. It reduced Zadvydas to a footnote citation with
a parenthetical reading: “addresses the immigration power to
exclude aliens from entering the United States.” Qassim, 927
F.3d at 529 n. 5. This conveyed the impression that Zadvydas
had nothing pertinent to say about the issue before the Qassim
court, which of course was not true. Once again this portion of
Zadvydas is ignored in today’s majority opinion.
4. Precedent of the D.C. Circuit Pre-Kiyemba
Qassim’s team of attorneys candidly admitted that the
law of this circuit was against them.11 On behalf of their client
in the district court, they “entered into a stipulation with the
government disputing the allegations against him but conceding
that, under the existing legal standards which denied him due
process and the ability to see and confront the evidence against
him, he could not prevail.” Qassim v. Trump, Dkt. No. 18-5148,
Appellant’s Br. 10. On appeal, Qassim’s attorneys conceded
that circuit precedent foreclosed his sole argument “that the
11
While they deserve credit for their honest evaluation of
circuit precedent, they failed to address or even mention the most
important Supreme Court decisions – Eisentrager, Verdugo-Urquidez
and Zadvydas, opinions repeatedly cited in the decisions of our court
and in the government’s brief in Qassim.
10
Fifth Amendment’s due process clause applies to unprivileged
enemy combatants detained at Guantanamo Bay.” Qassim v.
Trump, Dkt. No. 18-5148, Appellees’ Br. 4.12
Despite these concessions, the Qassim panel reached out
and decided the very issue the parties had conceded, and decided
it – obviously without any briefing – in a way that was the
opposite of what the parties had stipulated.
The Qassim opinion devoted most of its attention to one
circuit case – Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir.
2009), vacated, 559 U.S. 131, and reinstated as amended, 605
F.3d 1046 (D.C. Cir. 2010). Kiyemba, relying on the Supreme
Court’s opinions in Eisentrager, Verdugo-Urquidez and
Zadvydas, held that “the due process clause does not apply to
aliens without property or presence in the sovereign territory of
the United States.” 555 F.3d at 1026. According to Qassim,
however, this meant only that the Guantanamo detainees had no
substantive due process rights, which left open the question
whether they had procedural due process rights. After all,
Qassim reasoned, only a substantive due process right was
involved in Kiyemba.
That distinction is too clever by half.13 It once again tries
12
Qassim’s attorneys recognized that the panel of our court
assigned to his case could not “overrule or disregard prior panel
holdings,” but could “request[] proceedings en banc to reconsider”
circuit precedent. Qassim v. Trump, Dkt. No. 18-5148, Appellant’s
Br. 5.
13
A separate statement issued in an earlier stage of this case
put the substantive-procedural bee in Qassim’s bonnet. See Qassim,
927 F.3d at 528 (citing and quoting Ali v. Trump, 2019 WL 850757 at
*2 (D.C. Cir. 2019) (Tatel, J. concurring in denial of en banc review)).
11
to divert attention from the essential points of the Supreme
Court opinions in Eisentrager, Verdugo-Urquidez and Zadvydas,
opinions on which Kiyemba and other cases from this circuit
relied. As I have explained, those Supreme Court opinions
render Qassim’s substantive-procedural dichotomy irrelevant as
a matter of constitutional law. The reason the Due Process
Clause did not apply in Kiyemba was not that the detainees had
raised a “substantive” due process claim.14 The phrase
“substantive due process” does not appear in the Kiyemba
opinion. The detainees were not entitled to the protection of the
Due Process Clause because the Supreme Court has decided that
aliens outside of the United States do not qualify as “any
person” within the meaning of the Fifth Amendment.
In addition to the opinions of the Supreme Court,
Kiyemba relied upon five opinions of this circuit: Pauling v.
That statement did not confront, indeed did not even mention, any of
the Supreme Court’s opinions. My colleague may perhaps be excused
because the en banc petitioner failed to mention any of those cases.
See note 11, infra.
Even so, the statement to which I refer confirms my long-
standing objection to the practice of individual judges issuing opinions
on denials of rehearing en banc. I thought then and think now that the
practice “rubs against the grain of Article III’s ban on advisory
opinions. The manner in which these en banc ‘bulletins’ are
formulated does not simulate the process of the court when it is
actually deciding a case. If recurring issues are addressed, en banc
statements may be tantamount to prejudgments,” and – as we see in
this case – often are. Independent Insurance Agents of America, Inc.
v. Clarke, 965 F. 2d 1077,1080 (D.C. Cir. 1992).
14
Eisentrager itself cannot be distinguished on any such basis.
The habeas petitioners in Eisentrager raised procedural due process
claims. See Eisentrager v. Forrestal, 174 F.2d at 963.
12
McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam);
People’s Mojahedin Organization of Iran v. U.S. Department of
State, 182 F.3d 17, 22 (D.C. Cir. 1999); Harbury, 233 F.3d at
603; 32 County Sovereignty Committee v. U.S. Department of
State, 292 F.3d 797, 799 (D.C. Cir. 2002); Jifry v. FAA, 370
F.3d 1174, 1182 (D.C. Cir. 2004). Each of these cases
supported Kiyemba’s holding that “the due process clause does
not apply to aliens without property or presence in the sovereign
territory of the United States.” 555 F.3d at 1026.
Qassim, although purporting to recite the law of our
circuit, completely neglected these cases upon which Kiyemba
relied. This omission is all the more egregious because of the
five circuit precedents, four denied procedural due process
rights to aliens without property or presence in the United States
– the very issue Qassim asserted was an open question in our
court. See People’s Mojahedin, 182 F.3d at 22, 25; Harbury,
233 F.3d at 598, 604; 32 County Sovereignty, 292 F.3d at 798;
and Jifry, 370 F.3d at 1176, 1183.
5. Precedent of the D.C. Circuit Post-Kiyemba
Qassim did cite four post-Kiyemba opinions of this court.
Its treatment of those cases is of a piece with the rest of the
Qassim opinion.
One of the four cases was Rasul v. Myers, 563 F.3d 527
(D.C. Cir. 2009). Rasul relied on the Supreme Court opinions
in Eisentrager and Verdugo-Urquidez and concluded that “the
law of this circuit also holds that the Fifth Amendment does not
extend to aliens or foreign entities without presence or property
in the United States.” 563 F.3d at 531. Rasul was a procedural
due process case. In order to fit the case into its narrative,
Qassim asserted that Rasul – and the other post-Kiyemba cases
– had each “reserved such Due Process questions,” “such” being
13
procedural due process. 927 F.3d at 530. That assertion was not
true with respect to Rasul, and it was not true of the three other
cases. Rasul did not refuse to decide whether the detainees at
Guantanamo were entitled to procedural due process. Rasul
decided that question and plainly held they were not so entitled.
See 563 F.3d at 531. What the Qassim opinion is referring to
something quite different. It is Rasul’s statement that whether
“Boumediene has eroded the precedential force of Eisentrager
and its progeny. . . is not for us to determine; the Court has
reminded the lower federal courts that it alone retains the
authority to overrule its precedents.” 563 F.3d at 529.
The second post-Kiyemba case is Al-Madwhani v.
Obama, 642 F.3d 1071 (D.C. Cir. 2011). Al-Madwhani held
that Guantanamo detainees could not rely on procedural due
process, stating flatly “that the detainees at Guantanamo Bay
possess no constitutional due process rights.” 642 F.3d at 1077
(citing Kiyemba) (alterations omitted). The Al-Madwhani court
then wrote this: “Even assuming Madhwani had a constitutional
right to due process and assuming the district court violated it by
relying on evidence outside the record—premises we do not
accept—such error would be “harmless beyond a reasonable
doubt . . ..” Id. (emphasis added). The Qassim opinion omitted
the highlighted language and by doing so, gave the false
impression that Al-Madhwani left open the question whether
procedural due process applied at Guantanamo.
Qassim cited two other Guantanamo cases in support of
its claim that post-Kiyemba decisions of this court had reserved
the question whether “constitutional procedural protections”
applied to the detainees. 927 F.3d at 530. As to one of them –
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) – Qassim
correctly states that the opinion assumed “without deciding that
the constitutional right to be free from unwanted medical
treatment extends to nonresident aliens detained at
14
Guantanamo.” 927 F.3d at 530. The reason why this use of
Aamer is so misleading should be apparent: whether a detainee
may refuse medical treatment concerns substantive not
procedural rights. The Aamer court confirmed as much, noting
that the detainees “advance two separate substantive claims
regarding the legality of force-feeding.” 742 F.3d at 1038.
The same objection pertains to the fourth case Qassim
cited – Kiyemba v. Obama, 561 F.3d 509, 518 n.4 (D.C. Cir.
2009) (“Kiyemba II”). As in Aamer, Kiyemba II dealt explicitly
and only with substantive due process rights. The detainees
there asserted an “interest in avoiding torture or mistreatment by
a foreign nation” to challenge the government’s decision to
transfer them from Guantanamo Bay to another country. 561
F.3d at 518.
***
“Inconsistency is the antithesis of the rule of law. For
judges, the most basic principle of jurisprudence is that ‘we must
act alike in all cases of like nature.’” LaShawn A v. Barry, 87
F.3d 1389, 1393 (D.C. Cir. 1996) (en banc). The
law-of-the-circuit doctrine implements that principle: the same
issue presented in a later case in the same court should lead to
the same result. Id. That doctrine, together with the Supreme
Court’s admonition that the lower courts must adhere to the
Court’s precedents without anticipating their overruling, were
blatantly disregarded in Qassim. “When a decision of one panel
is inconsistent with the decision of a prior panel, the norm is that
the later decision, being a violation of fixed law, cannot
prevail.” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir.
2011). And “it is for the Supreme Court, not us, to proclaim
error in its past rulings, or their erosion by its adjudications
since.” Breakefield v. District of Columbia, 442 F.2d 1227,
1230 (D.C. Cir. 1970). For these reasons, I would affirm the
15
district court’s denial of Ali’s petition based on a
straightforward application of Eisentrager, Verdugo-Urquidez,
Zadvydas, and the litany of circuit cases since Eisentrager
confirming that the Fifth Amendment does not apply to aliens
without property or presence in the United States.