Khalid Qassim v. Donald Trump

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2019 Decided June 21, 2019
No. 18-5148
KHALID AHMED QASSIM,
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. 1:04-cv-01194)
Thomas B. Wilner argued the cause for appellant. With
him on the briefs were Neil H. Koslowe, Kimberly Ferguson,
and Anthony G. Amsterdam.
Joseph Margulies was on the brief for amicus curiae
Commonwealth Lawyers Association in support of appellant.
Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Sharon Swingle and Michael Shih.
Before: MILLETT and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Khalid Ahmed Qassim, who has
been held at the Guantanamo Bay Naval Base in Cuba for
seventeen years, appeals the district court’s denial of his
petition for a writ of habeas corpus. On appeal, Qassim presses
a due process challenge to the government’s use of undisclosed
classified information as a basis for his detention. In denying
Qassim’s motion in limine concerning the use of undisclosed
information, the district court ruled that, as an alien
Guantanamo detainee, Qassim has no rights under the Fifth
Amendment’s Due Process Clause. In so ruling, the district
court relied on this court’s 2009 decision in Kiyemba v. Obama,
555 F.3d 1022 (D.C. Cir. 2009), vacated, 559 U.S. 131, and
judgment reinstated as amended, 605 F.3d 1046 (D.C. Cir.
2010).
The district court’s ruling that binding circuit precedent
denies Qassim all rights to due process was in error. Kiyemba
did not so hold. That decision ruled only that the Due Process
Clause does not invest detainees who have already been
granted habeas corpus with a substantive due process right to
be released into the United States. That decision did not decide,
or have any occasion to address, what constitutional procedural
protections apply to the litigation of a detainee’s habeas corpus
petition in the first instance. Nor has any other decision of this
circuit adopted a categorical prohibition on affording detainees
seeking habeas relief any constitutional procedural protections.
The governing law, in fact, is that Qassim and other alien
detainees must be afforded a habeas process that ensures
“meaningful review” of their detention. Boumediene v. Bush,
553 U.S. 723, 783 (2008).
Beyond that, resolution of Qassim’s specific due process
challenge to the government’s withholding of classified
3
information would be premature precisely because the parties
and the district court operated under a faulty understanding of
circuit precedent. We instead are constrained to remand the
case for further proceedings to be conducted within the correct
legal framework and to develop the needed factual record.
Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (“When
an appellate court discerns that a district court has failed to
make a finding because of an erroneous view of the law, the
usual rule is that there should be a remand for further
proceedings to permit the trial court to make the missing
findings.”). As it now stands, the record is insufficient for this
court to resolve Qassim’s constitutional challenge. Cf. Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 66 (1993). We leave it
for the district court to address on remand both Qassim’s
claimed constitutional right to access the classified information
in the government’s hands and the constitutional source (if any)
of such a right. In so doing, the district court can also address
the government’s belated concession, made for the first time on
appeal, that some of the sought-after information may properly
be disclosed in this case.
I
A
In response to the terrorist attacks against the United States
perpetrated on September 11, 2001, Congress enacted the
Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (2001). That law authorizes 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.” Pub. L. No. 107-40, § 2(a), 115 Stat.
224, 244. That authority includes detaining “those who are part
of forces associated with Al Qaeda or the Taliban[.]” Al-
4
Madhwani v. Obama, 642 F.3d 1071, 1074 (D.C. Cir. 2011)
(quoting Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir.
2010)).
Petitioner Qassim is a Yemeni citizen. In 1999, he was
recruited by a known al Qaeda and Taliban recruiter to travel
from Yemen to Afghanistan for military-style training. He
traveled to Afghanistan and twice received training at the al
Qaeda-run Al-Farouq training camp. 1
In October 2001, when the United States began bombing
Afghanistan in response to the September 11th attacks, Qassim
was on the front lines with the Taliban near Bagram,
Afghanistan. After the front lines broke, Qassim retreated to
an al Qaeda-affiliated guest house and then to the Tora Bora
region, a cave complex in the mountains of Eastern
Afghanistan. Qassim spent twenty days in Tora Bora and was
present for a nighttime visit from Osama bin Laden.
Qassim was arrested by Afghan police, who handed him
over to United States authorities in December 2001. Qassim’s
name was later found during raids of al Qaeda safehouses and
an al Qaeda residence in Pakistan. On May 1, 2002, the United
States moved Qassim to its detention facility at Guantanamo
Bay, where he has remained.
B
Shortly after the Supreme Court held in Rasul v. Bush, 542
U.S. 466 (2004), that the federal habeas statute, 28 U.S.C.
1
This factual background is drawn from the joint stipulation of
facts between the parties. Qassim has conceded these facts for
purposes of this appeal only, and has reserved the right to contest
them in subsequent proceedings.
5
§ 2241 (2004), applies to foreign detainees held at Guantanamo
Bay, id. at 481, Qassim filed a petition for habeas corpus in the
United States District Court for the District of Columbia.
Qassim’s habeas case has a long and winding history.
While Qassim’s habeas petition was pending in district court,
Congress enacted the Detainee Treatment Act of 2005, Pub. L.
No. 109-148, 119 Stat. 2739. That statute purported to deprive
the federal courts of jurisdiction over habeas cases brought by
aliens detained at Guantanamo Bay. See Pub. L. No. 109-148
§ 1005(e)(1), 119 Stat. 2739, 2742. A year later, the Supreme
Court held that the Detainee Treatment Act did not deprive
federal courts of jurisdiction over habeas petitions that, like
Qassim’s, were already pending at the time the law was
enacted. See Hamdan v. Rumsfeld, 548 U.S. 557, 575–578
(2006).
Congress then passed the Military Commissions Act of
2006, which purported to strip the federal courts of jurisdiction
over pending habeas cases from detainees at Guantanamo Bay.
Pub. L. No. 109-366, 120 Stat. 2600. In Boumediene v. Bush,
the Supreme Court invalidated a section of the Military
Commissions Act as an unconstitutional suspension of the writ
of habeas corpus, and held that the privilege of habeas corpus
entitles detainees to a “meaningful opportunity” for review,
553 U.S. at 771, 779, 783.
In the wake of Boumediene, Qassim and the government
agreed to indefinitely stay his case while the standards and
procedures for litigating Guantanamo habeas cases were
worked out in other pending cases.
And so Qassim waited. And waited. For eight years, his
case remained in limbo. Finally, in February 2017, Qassim
attempted to spur action on his case by moving for the entry of
6
final judgment without factual findings. In Qassim’s view, this
court’s precedent preordained the denial of his habeas petition,
so he asked the district court to enter judgment in an effort to
obtain en banc or Supreme Court review overturning that
precedent.
The district court denied the motion, reasoning that factual
findings needed to be made before final judgment could be
entered and the case could proceed to appellate review.
Recognizing Qassim’s desire to proceed expeditiously to
appeal, the district court advised the parties to propose a
procedure that would allow for a prompt disposition of the case
on the basis of a sufficient factual record.
Qassim then proposed to the government pre-trial and trial
procedures that, among other things, would allow for the
disclosure of classified materials to his counsel and for the
sharing with Qassim of an “adequate substitute” for such
materials. Supp. App’x 38. Under Qassim’s plan, the
government would be unable to rely on any information that
had not been disclosed to justify Qassim’s detention.
The government rejected Qassim’s proposal, suggesting
instead that the parties proceed by way of a stipulated factual
record. Under the government’s framework, the parties’
stipulations would allow the district court to “make findings of
fact and conclusions of law,” while still preserving Qassim’s
right to appeal certain aspects of a case management order and
a protective order that the district court issued in 2008 to
establish procedures for the adjudication of Guantanamo Bay
habeas corpus petitions. Supp. App’x 64–65.
Qassim acquiesced to the government’s proposal on the
condition that his right to assert a due process claim would be
preserved for appeal. Public J.A. 27–28; see also Supp. App’x
7
48 (email explaining government’s view that the parties should
adopt a procedure that preserved the issues Qassim wished to
challenge on appeal without having to relitigate in district court
pertinent circuit decisions and the procedures governing
Guantanamo habeas cases). 2
In the face of a series of district court rulings holding that
the Kiyemba ruling categorically denied Guantanamo Bay
detainees the protections of the Due Process Clause, Qassim
filed a motion in limine. 3 In that motion, he asked the district
court to resolve his habeas petition “without regard to the
premise that ‘the due process clause does not apply to aliens
2
At every step of this litigation, Qassim reserved his right to
raise on appeal his claim that he is entitled to procedural due process
in his habeas proceedings. See, e.g., Motion for Entry of Judgment
2–3, Dkt. 1093 (explaining intention to challenge due process
language in Kiyemba en banc and, if necessary, at the Supreme
Court); Motion in Limine 4, Unclass. J.A. 425 (arguing that
“Guantanamo detainees are entitled to the procedural protections of
the Due Process Clause in petitioning for habeas corpus relief”); id.
at 6, Unclass. J.A. 427 n.1 (noting “that some of the evidence upon
which the government relies to support its ongoing detention of
[Qassim] consists of documents that are redacted in part or in full,
which have not been seen or read by Qassim or his counsel,” and
arguing that “[d]ue process requires a timely disclosure of all the
evidence against Qassim and a fair opportunity to challenge and
rebut such evidence”); Prehearing Br. 5, Supp. App’x 79 (arguing
that “Guantanamo Detainees Are Entitled to Due Process”); District
Ct. Tr. 4, Public J.A. 4 (arguing that “Mr. Qassim is entitled to the
protections of the due process clause”).
3
See, e.g., Rabbani v. Obama, 76 F. Supp. 3d 21, 25 (D.D.C.
2014); Ameziane v. Obama, 58 F. Supp. 3d 99, 103 n.2 (D.D.C.
2014); Bostan v. Obama, 674 F. Supp. 2d 9, 29 (D.D.C. 2009); Salahi
v. Obama, No. 05-0569 (RCL), 2015 WL 9216557, at *5 (D.D.C.
Dec. 17, 2015).
8
without property or presence in the sovereign territory of the
United States.’ (Kiyemba v. Obama, 555 F.3d [at] 1026[)].”
Unclass. J.A. 423. In addition, Qassim asked the district court
not to rely on any evidence “that was not provided in advance
and in writing to [him] [and] * * * that was not accompanied
by the full disclosure of all information in the government’s
possession bearing on the weight, provenance, and accuracy of
the evidence claimed to justify petitioner’s detention[.]”
Unclass. J.A. 423.
The district court denied the motion in limine, reading this
court’s decision in Kiyemba as establishing that Qassim had no
right to due process. See Public J.A. 18–19. The district court
then entered final judgment based on the parties’ stipulated
facts and denied Qassim’s habeas petition. Included in those
stipulations was a reiteration of Qassim’s objection to the
application of Kiyemba to deny him due process protections,
and a reservation of his right to challenge that decision on
appeal. See Public J.A. 28. Qassim filed a timely notice of
appeal.
II
Qassim argues on appeal that denying him or his attorneys
access to the classified evidence that the government is using
to detain him violates the Due Process Clause of the Fifth
Amendment, and that this court should recognize due process
protections for Guantanamo Bay habeas petitioners.
Although we cannot accept either proposition on the
record before us, we agree with Qassim that his case has thus
far been adjudicated within an erroneous legal framework. The
district court should not have applied Kiyemba as a categorical
bar on constitutional procedural protections in habeas litigation
for foreign detainees at Guantanamo Bay. Because that flawed
9
premise on which this case was litigated prevented the district
court from developing the concrete record necessary for
resolution of the particular evidentiary due process question
that Qassim presses, we remand for the district court to
consider in the first instance whether and how the Due Process
Clause applies to Qassim’s request that he or his counsel be
allowed to see classified information relevant to his detention.
A
The district court’s denial of Qassim’s motion in limine
and the entry of judgment against Qassim were both predicated
on that court’s conclusion that Kiyemba firmly closed the door
on procedural due process claims for Guantanamo Bay
detainees. That was error.
Kiyemba neither presented nor decided the question of
whether Guantanamo detainees enjoy procedural due process
protections under the Fifth Amendment (or any other
constitutional source, see, e.g., Suspension Clause, U.S. Const.
Art. I, § 9, cl. 2) in adjudicating their habeas petitions. In fact,
Kiyemba was not about the procedures for litigating habeas
petitions at all. In Kiyemba, the central habeas question of the
government’s authority to detain the petitioners had already
been resolved. The government conceded that the Kiyemba
detainees, who were Chinese Uighurs, could not lawfully be
held as enemy combatants. 555 F.3d at 1024. For that reason,
the question of what procedural protections apply in the habeas
process, including whether there is any right to confront the
government’s evidence, was not before the Kiyemba court in
any way, shape, or form. See generally Kiyemba, 555 F.3d
1022.
Instead, the issue on appeal in Kiyemba was the narrow
question of what remedy could be given once the government
10
conceded that it could not lawfully hold those detainees.
Specifically, because Kiyemba and his fellow petitioners
argued that they could not be returned to their country of origin
due to a fear of torture or execution, Kiyemba, 555 F.3d at
1024, the district court had ordered the detainees released into
the United States, citing the need to protect the “fundamental
right of liberty[,]” id. at 1026 (internal quotation marks
omitted). The federal government opposed that remedy. And
that substantive due process claim concerning the scope of the
habeas remedy is the only Due Process Clause issue that
Kiyemba resolved. See id. (holding that “the due process clause
cannot support the court’s order of release”) (emphasis added);
id. at 1029 (“The question here is not whether petitioners
should be released, but where.”); id. at 1028 (“[T]he decision
whether to allow an alien to enter the country [i]s for the
political departments, not the Judiciary.”) (citing U.S. ex rel.
Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206 (1953)); see also
Ali v. Trump, No. 18-5297, 2019 WL 850757, at *2 (D.C. Cir.
Feb. 22, 2019) (Tatel, J., concurring in denial of en banc
review) (“Context * * * indicates that the [Kiyemba] court was
referring to the right to substantive due process.”).
Nor could Kiyemba have slammed the door on the
Constitution’s procedural protections for Guantanamo Bay
detainees in the adjudication of their habeas petitions. The
Supreme Court’s decision in Boumediene was explicit that
detainees must be afforded those “procedural protections”
necessary (i) to “rebut the factual basis for the Government’s
assertion that he is an enemy combatant,” 553 U.S. at 783; (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,” id. at 779 (internal quotation
marks and citation omitted); and (iii) to create a record that will
support “meaningful review” by the district court, id. at 783.
 11
In so holding, the Supreme Court pointed to both the
Constitution’s guarantee of habeas corpus, U.S. Const., Art. I,
§ 9, cl. 2; see Boumediene, 553 U.S. at 771–792, and the
procedural protections of the Due Process Clause, id. at 781
(scope of habeas review “accords with our test for procedural
adequacy in the due process context”); id. at 785 (reserving
issue of whether statutory procedures “satisfy due process
standards”).
To be fair to the district court, Kiyemba did say at one point
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. 4 But the purely remedial context of
that statement necessarily cabined its reach. After all, federal
courts have no license to provide advisory opinions on issues
that are not presented by the case before them. See Flast v.
Cohen, 392 U.S. 83, 96 (1968) (“[T]he oldest and most
consistent thread in the federal law of justiciability is that the
federal courts will not give advisory opinions.”) (internal
quotation marks omitted); Public Serv. Elec. & Gas Co. v.
FERC, 783 F.3d 1270, 1274 (D.C. Cir. 2015) (same). 5
4
This statement has been read broadly by numerous district
court judges. See supra n.3; Ali v. Trump, 317 F. Supp. 3d 480, 488
(D.D.C. 2018).
5
The Supreme Court citations that Kiyemba pointed to in
making its statement about the application of the Due Process Clause
to aliens likewise confirm that the decision was not addressing the
procedural protections due in habeas corpus proceedings. See
Kiyemba, 555 F.3d at 1026–1027 (citing Zadvydas v. Davis, 533 U.S.
678, 693 (2001) (portion cited by Kiyemba addresses the
immigration power to exclude aliens from entering the United
States); Johnson v. Eisentrager, 339 U.S. 763, 783–784 (1950)
(portion cited in Kiyemba holds that enemy aliens engaged in hostile
action against the United States have no immunity from military
12
Doubly so when deciding constitutional questions.
“[C]ourts must choose the narrowest constitutional path to
decision.” Association of American Railroads v. United States
Dep’t of Transp., 896 F.3d 539, 544 (D.C. Cir. 2018); see
Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“For
adjudication of constitutional issues[,] concrete legal issues,
presented in actual cases, not abstractions are requisite.”)
(internal quotation marks omitted); see also Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995) (courts are
obligated to resolve cases, when possible, on “the narrower
ground for adjudication of the constitutional question[ ] in the
case”); Ashwander v. Tennessee Valley Auth., 297 U.S. 288,
347 (1936) (Brandeis, J., concurring) (courts should not
“formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied”) (internal
quotation marks omitted).
Tellingly, no subsequent decision of this court has read
Kiyemba as walling off Guantanamo Bay detainees from all
constitutional procedural protections. See Aamer v. Obama,
742 F.3d 1023, 1039 (D.C. Cir. 2014) (“assum[ing] without
deciding that the constitutional right to be free from unwanted
medical treatment extends to nonresident aliens detained at
Guantanamo”); Al-Madhwani v. Obama, 642 F.3d 1071, 1077
(D.C. Cir. 2011) (assuming the detainee had a constitutional
right to due process and the district court violated it, but
concluding that “such error would be harmless”) (quotation
marks omitted); Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir.
2009) (declining to “decide whether Boumediene portends
trial); and United States v. Verdugo-Urquidez, 494 U.S. 259, 269,
274–275 (1990) (portions cited by Kiyemba hold that 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)).
13
application of the Due Process Clause and the Cruel and
Unusual Punishment Clause to Guantanamo detainees”);
Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509, 514 n.4
(D.C. Cir. 2009) (assuming without deciding that Guantanamo
detainees possessed substantive due process rights in transfers
to foreign countries). We would not have repeatedly reserved
such Due Process Clause questions if they had already been
conclusively answered in Kiyemba.
That is all a long way of saying that this court’s decision
in Kiyemba did not answer a question that was never asked.
Circuit precedent leaves open and unresolved the question of
what constitutional procedural protections apply to the
adjudication of detainee habeas corpus petitions, and where
those rights are housed in the Constitution (the Fifth
Amendment’s Due Process Clause, the Suspension Clause,
both, or elsewhere).
B
Qassim argues that the Due Process Clause applies to him
and requires that he and his counsel be afforded access to
classified information underlying the government’s decision to
detain him so that Qassim can confront and challenge it in his
habeas petition.
Under long-established principles of constitutional
avoidance, courts must “avoid the premature adjudication of
constitutional questions” and “not * * * pass on questions of
constitutionality * * * unless such adjudication is
unavoidable[.]” Matal v. Tam, 137 S. Ct. 1744, 1755 (2017);
see Clinton v. Jones, 520 U.S. 681, 690 n.11 (1997) (courts will
not “decide any constitutional question in advance of the
necessity for its decision[,] * * * formulate a rule of
constitutional law broader than is required by the precise facts
14
to which it is to be applied[,] * * * [or] decide any constitutional
question except with reference to the particular facts to which
it is to be applied[.]”); Ashwander, 297 U.S. at 346–347
(Brandeis, J., concurring) (“The Court will not anticipate a
question of constitutional law in advance of the necessity of
deciding it,” or “decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.”) (internal
quotation marks and citations omitted).
The rule against the “premature adjudication of
constitutional questions,” Matal, 137 S. Ct. at 1755, counsels
strongly against resolving such issues without an “adequate and
full-bodied record,” Kleppe v. New Mexico, 426 U.S. 529, 546
(1976) (internal quotation marks omitted), and the “clarity
needed for effective adjudication,” Socialist Labor Party v.
Gilligan, 406 U.S. 583, 588 n.2 (1972).
Qassim’s quest to see the classified information
underlying his detention falls squarely within the category of
premature constitutional questions. The case management
order and protective order entered in this case provide a
mechanism for the exchange of classified information. For
example, the case management order creates a presumption
that the government will turn over to the petitioner’s security-
cleared counsel all reasonably available exculpatory evidence
in its possession and, on request, all documents used to justify
the petitioner’s detention, unless the government moves for an
exception to withhold particular classified documents. See
Amended Case Management Order 2–3, Unclass. J.A. 415–
416. While the protective order generally prevents detainees
themselves from reviewing the classified information,
Qassim’s counsel has the right to request that information be
declassified or, according to the government, to share that
information with Qassim either with the government’s “prior
concurrence” or the court’s “express permission.” Gov. Br. 10.
15
The parties invoked none of those discovery procedures.
Instead, operating under the premise that Kiyemba disentitled
Qassim to constitutional due process, judgment was entered
based on a factual record that expressly preserved the due
process question for review. See, e.g., Factual Stipulations 2–
3, Public J.A. 27–28 (citing Kiyemba for the proposition that
“the due process clause does not apply to aliens detained at
Guantanamo Bay,” noting Qassim’s view that this case was
wrongly decided, and reserving Qassim’s right to challenge it);
see also, e.g., Supp. App’x 48 (email setting out government’s
view that parties should proceed by way of factual stipulations
while still allowing Qassim to reserve rights for appeal).
As a result, the parties never tested the disclosure
procedures in the case management and protective orders.
Complicating matters further, the government has advised for
the first time on appeal that, were Qassim to pursue the
available procedures, he might “receive[] most or all of the
information to which he * * * claims due process entitles him.”
Gov. Br. 14. Of course, we would have expected the
government to have told Qassim and the district court that
before proposing that the parties set up an appeal to this court
based on an incomplete record. 6
6
The government claims that it did not rely on anything
contained in the classified material to justify Qassim’s detention.
But that is hardly the end of the legal question. Neither Qassim nor
the court are bound to take the government’s word for it. See Al
Odah v. United States, 559 F.3d 539, 544–548 (D.C. Cir. 2009)
(describing process for ex parte review of classified evidence by the
court); Parhat v. Gates, 532 F.3d 834, 847–848 (D.C. Cir. 2008)
(courts must have the ability in habeas cases to examine
independently the reliability of record evidence). In any event,
Qassim asserts a right to see materially exculpatory information in
the government’s records, as well as information that could provide
16
But that is water under the bridge. What matters for
present purposes is that, unless and until specific discovery
requests are made and ruled upon, it is impossible at this
juncture for this court to determine (i) which information
would be disclosed under the district court’s case management
order and the government’s newly found optimism on appeal
about available disclosures; (ii) whether any information that
might be withheld even implicates possible constitutional
disclosure obligations, cf. Gagnon v. Scarpelli, 411 U.S. 778
(1973); Morrissey v. Brewer, 408 U.S. 471 (1972); Brady v.
Maryland, 373 U.S. 83 (1963); or (iii) what the consequences
of extending constitutional procedural rights to alien detainees
at Guantanamo Bay would be—that is, what balance would be
struck between the government’s potential justifications for
any withholdings and Qassim’s and his counsel’s need to see
the material to meaningfully litigate his habeas petition, cf.
Boumediene, 553 U.S. at 766–771 (engaging in a context-
specific examination of the consequences of extending habeas
corpus processes to alien detainees at Guantanamo). In other
words, in its present posture, resolution of the constitutional
question presented would be premature.
To be sure, following the district court’s procedures and
litigating any discovery disputes might not give Qassim all of
the information to which he believes he is entitled. Still,
allowing for the discovery process to take its ordinary course
and for a factual record to be developed would narrow and
important context for the materials on which the government or the
court might rely. See Unclass. J.A. 423, 426. Because neither we
nor the district court have seen this classified information, we cannot
blindly hold that the government’s failure to disclose it was harmless.
See United States v. Dorman, 860 F.3d 675, 685 (D.C. Cir. 2017)
(noting that the government bears the burden of proving harmless
error).
17
frame the constitutional question presented, providing the
crystallization and “clarity needed for effective adjudication.”
Socialist Labor Party, 406 U.S. at 588 n.2.
Without a decision from the district court addressing the
constitutional question in the particular context of a concrete
discovery dispute, it would be “premature,” Matal, 137 S. Ct.
at 1755, for us to resolve Qassim’s due process claim, see, e.g.,
United States v. Byers, 740 F.2d 1104, 1128 n.31 (D.C. Cir.
1984) (“[T]he well-entrenched rule is that courts will not
resolve constitutional issues on a deficient record.”).
Accordingly, we reverse and remand to the district court.
See, e.g., Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997)
(remanding so district court could develop clear record of exact
process afforded to appellant). On remand, the district court
will be free to modify the procedures set out in the case
management order as necessary to facilitate resolution of the
constitutional questions raised in this case. See Barhoumi v.
Obama, 609 F.3d 416, 421 (D.C. Cir. 2010) (“Although the
cases [the detainee] cites hold that parties have a duty to
comply with case management orders, he cites no authority for
the proposition that judges are required to follow their own
* * * case management order[s].”).
* * * * *
For the foregoing reasons, the district court’s judgment
denying Qassim’s habeas petition is reversed and the case is
remanded for further proceedings consistent with the opinion
of this court.
So ordered.