Abdulsalam Ali Al-Hela v. Joseph Biden (REISSUED)

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 30, 2021 Decided April 4, 2023
Reissued April 12, 2023
No. 19-5079
ABDULSALAM ALI ABDULRAHMAN AL-HELA, DETAINEE CAMP
DELTA, ALSO KNOWN AS ABD AL-SALAM ALI AL-HILA AND
ABDULWAHAB ALI ABDULRAHMAN AL-HELA, AS NEXT
FRIEND OF ABDULSALAM ALI ABDULRAHMAN AL-HELA,
APPELLANTS
v.
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET
AL.,
APPELLEES
On Petition for Rehearing En Banc
David M. Zionts argued the cause for appellants. On the
briefs were David H. Remes, Beth D. Jacob, S. William
Livingston, Brian E. Foster, Andrew D. Garrahan, and
Bethany Theriot. Cyril Djoukeng and Robert A. Long, Jr
entered appearances.
Joseph Margulies, Stephen M. Truitt, Kermit Roosevelt,
III, Bruce Ackerman, Erwin Chemerinsky, Eugene R. Fidell,
Eric M. Freedman, Jared Goldstein, Randy Hertz, Alan
Morrison, and Laurence H. Tribe were on the brief for amicus
curiae The Commonwealth Lawyers Association in support of
appellants.
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Thomas B. Wilner and Neil H. Koslowe were on the brief
for amicus curiae Khalid Ahmed Qassim in support of
appellants.
George M. Clarke, III and Parisa Manteghi Griess were
on the brief for amicus curiae Tofiq Nasser Awad Al Bihani in
support of appellants.
Anil K. Vassanji was on the brief for amicus curiae
Professor Eric Janus in support of appellants.
Mark C. Fleming and Patricia Lee Refo were on the brief
for amicus curiae The American Bar Association in support of
appellants.
Shayana Kadidal and J. Wells Dixon were on the brief for
amicus curiae The Center for Constitutional Rights in support
of appellants.
Jack B. Gordon was on the brief for amicus curiae Human
Rights First and Reprieve US in support of appellants.
Matthew S. Hellman was on the brief for amicus curiae
The National Association of Criminal Defense Lawyers in
support of appellants.
Sarah E. Harrington, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellees.
With her on the brief were Brian M. Boynton, Acting Assistant
Attorney General at the time of argument, and Sharon Swingle
and Brad Hinshelwood, Attorneys.
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Before: SRINIVASAN, Chief Judge, HENDERSON, ROGERS *,
TATEL*, MILLETT, PILLARD, WILKINS, KATSAS ∗∗, RAO,
WALKER, JACKSON ∗∗∗, CHILDS**, and PAN**, Circuit Judges,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
Concurring opinion filed by Circuit Judge PILLARD, with
whom Circuit Judges ROGERS and MILLETT join.
Opinion concurring in the judgment in part and dissenting
in part filed by Circuit Judge RAO, with whom Circuit
Judge WALKER joins.
Opinion concurring in the judgment and dissenting filed
by Senior Circuit Judge RANDOLPH, with whom Circuit
Judges HENDERSON and WALKER join.
WILKINS, Circuit Judge: Yemeni citizen Abdulsalam Ali
Abdulrahman al-Hela (“Mr. al-Hela”) challenges the basis of
his detention at U.S. Naval Station Guantanamo Bay. Detained
in 2004, Mr. al-Hela filed a petition for a writ of habeas corpus
in 2005 pursuant to 28 U.S.C. § 2241. Pet. 2; Resp. Br. 1
(Judge Randolph mistakenly asserts that Mr. al-Hela invokes
the common law, rather than the statutory, writ of habeas
corpus. Randolph Op. 5.). The petition languished as the law
surrounding the availability of constitutional protections for
Guantanamo Bay detainees developed. However, that changed
*
Circuit Judges Rogers and Tatel assumed senior status after this
case was argued and before the date of this opinion.
∗∗
Circuit Judges Katsas, Childs, and Pan did not participate in this
matter.
∗∗∗
Circuit Judge, now Justice, Jackson was a member of the en banc
Court at the time the case was argued but did not participate in this
opinion.
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when the Supreme Court confirmed the availability of the
constitutional privilege of habeas corpus in Boumediene v.
Bush, 553 U.S. 723 (2008), and concluded that the Suspension
Clause entitles noncitizens detained at Guantanamo to a
“meaningful opportunity” to challenge the basis of detention
and requires a habeas process providing a “meaningful review”
of the cause for detention and the Executive’s power to detain.
Id. at 779, 783; see U.S. CONST. art. I, § 9, cl. 2.
Proceedings began, and following a series of hearings, the
District Court denied Mr. al-Hela’s petition. Al-Hela v. Trump,
No. 05-cv-1048, unclass. slip op. (D.D.C. Jan. 28, 2019)
(Lamberth, J.) (an electronic version of the opinion is available
at 2019 U.S. Dist. LEXIS 42717).
Mr. al-Hela appealed. He argued that the length of his
detention without trial violated the Due Process Clause. He
also argued that the District Court’s procedural decisions and
evidentiary rulings deprived him of his right under the
Suspension Clause to meaningful review of, and a meaningful
opportunity to challenge, the basis for his detention, see
Boumediene, 553 U.S. at 779, 783, as well as his rights under
the Due Process Clause.
A panel of this Court affirmed the District Court’s
decision. It concluded that Petitioner’s detention remained
lawful and that the District Court proceedings had satisfied
what was required under the Suspension Clause. Al Hela v.
Trump, 972 F.3d 120, 127 (D.C. Cir. 2020). But the panel went
a step further. Rather than ruling on the government’s “first
position,” which was that Petitioner’s detention satisfied the
Due Process Clause, Oral Arg. Tr. 90, the panel adopted the
government’s “backup position,” id., and ruled that the
protections of the Due Process Clause were categorically
unavailable to Guantanamo Bay detainees and rejected Mr. al-
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Hela’s due process challenges on that basis. Al Hela, 972 F.3d
at 127, 150. Judge Randolph concurred, id. at 155 (Randolph,
J., concurring), based on his separate opinion in Ali v. Trump,
in which he stated his view that the “Fifth Amendment does not
apply to aliens without property or presence in the United
States,” 959 F.3d 364, 380 (D.C. Cir. 2020) (Randolph, J.,
concurring).
Judge Griffith concurred in part and in the judgment.
Notably, he agreed that Mr. al-Hela’s petition failed on the
merits but found no reason to reach “the broader question of
whether the Due Process Clause applies at Guantanamo.” Al
Hela, 972 F.3d at 151 (Griffith, J., concurring). Judge Griffith
concluded that Petitioner received “as much process as he
would have been due under the Due Process Clause with
respect to his particular claims.” Id.
Because this Court has on numerous occasions assumed
without deciding that the Due Process Clause extends to
Guantanamo detainees when assessing the specific claims
raised by petitioners, we vacated the panel’s judgment and
agreed to rehear Petitioner’s due process claims en banc.
Order, Al-Hela v. Biden, No. 19-5079, 2021 WL 6753656, at
*1 (D.C. Cir. Apr. 23, 2021) (“2021 Al-Hela Order”). And
because the Court’s grant of en banc review is confined to Mr.
al-Hela’s due process claims, we reinstate the panel’s judgment
as to his other claims.
After we granted rehearing, the government altered its
position on whether the Due Process Clause applies to
Guantanamo detainees. No longer arguing its secondary
position, the government urges us not to reach the question of
whether noncitizen Guantanamo detainees are beyond the
scope of the Due Process Clause. Instead, the government asks
us to reject Mr. al-Hela’s petition because, even assuming the
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Due Process Clause applies, he received all the process he is
due and his detention does not violate substantive due process.
Resp. Br. 20–21, 24–25.
For the reasons set forth below, we affirm the District
Court. Every judge on the en banc Court rejects Mr. al-Hela’s
claim that his procedural due process rights were violated. We
hold that we need not decide whether due process protections
apply to Guantanamo detainees, because even assuming the
Due Process Clause applies, we find that the procedures
employed by the District Court to adjudicate Mr. al-Hela’s
habeas petition satisfy procedural due process. Our dissenting
colleagues would hold that the Due Process Clause does not
apply to Mr. al-Hela as a Guantanamo Bay detainee and would
reject his procedural due process claim on that ground.
In addition, every member of the en banc Court rejects Mr.
al-Hela’s claims that his detention violates substantive due
process because there is insufficient evidence that he was an
enemy combatant or solely because of the lengthy duration of
the military conflict. As with the procedural due process claim,
we conclude that even assuming the Due Process Clause
applies to Mr. al-Hela, these claims fail on the merits. Again,
our dissenting colleagues would reject these claims based on
their conclusion that the Due Process Clause does not apply at
Guantanamo.
And as to Mr. al-Hela’s claim that his continued detention
violates substantive due process because he no longer poses a
significant threat to the United States, the en banc Court is
similarly divided.
We remand this claim to the District Court to resolve a
potentially antecedent statutory issue. Following argument
before the three-judge panel but prior to argument before the
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en banc Court, the Periodic Review Board created by
Executive Order, see Exec. Order No. 13,567 § 1(a), (b), 76
Fed. Reg. 13,277, 13,277 (Mar. 7, 2011), determined that Mr.
al-Hela was eligible for a transfer because his detention “is no
longer necessary to protect against a continuing significant
threat to the security of the United States.” Periodic Review
Board, Unclassified Summary of Final Determination, Abd Al-
Salam Al-Hilah (ISN 1463) (June 8, 2021) [hereinafter
“Periodic Review Board Determination”]. (Petitioner’s name
is spelled a variety of ways throughout the record.). Mr. al-
Hela contends that this intervening Periodic Review Board
Determination undermines the statutory authority for his
detention. Pet’r Reply Br. 2–3, 7–9. (The Determination was
issued after the filing of Mr. al-Hela’s opening brief to the en
banc Court.). Because the District Court did not have occasion
to address this argument, and because this statutory contention
could render his substantive due process claim moot or afford
a non-constitutional ground for granting the relief he seeks, we
remand this claim, along with the parallel substantive due
process claim, to the District Court for its consideration in the
first instance. (Our dissenting colleagues, however, would
reject this last substantive due process claim.).
I.
The panel rejected Mr. al-Hela’s contentions that the
District Court’s factual findings were in clear error, Al Hela,
972 F.3d at 134–35, and that ruling of the panel is not before
us. Accordingly, we recount the District Court’s findings here.
Mr. al-Hela is a Muslim man who enjoyed power in
Yemen. Born in Sana’a, he became sheikh (leader) of his tribe
after his father’s death in 1983. He had many successful
business ventures ranging from real estate, pharmaceutical
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sales, used car trading, weapons sales, oil exploration, and
Yemeni infrastructure investments with international
companies and government officials. Mr. al-Hela was also
close to the political elite in Yemen. Throughout the mid-1990s
and early 2000s, he supported the Political Security
Organization, a governmental internal security organization.
Through the Political Security Organization, Yemen
conducted a deportation program to rid the country of “Afghan
Arabs,” a coalition of people who settled in Yemen after
fighting in the war against the Soviet Union in Afghanistan.
The District Court found that Mr. al-Hela “acted outside the
scope” of this deportation program by facilitating the travel of
Islamic extremists, including members of al Qaeda and its
associated force, the Egyptian Islamic Jihad. It also found that
he supported bombing attacks conducted by the Aden-Abyan
Islamic Army. Al Hela, unclass. slip op. at 2–4.
In September 2002, Mr. al-Hela traveled to Cairo, Egypt
on business and disappeared. He arrived at United States Naval
Station Guantanamo Bay two years later, in 2004. He has been
held there as an enemy combatant pursuant to the 2001
Authorization for Use of Military Force (“AUMF”) without
charge ever since. Pub. L. No. 107-40, 115 Stat. 224 (2001).
Congress passed and President George W. Bush signed the
AUMF a week after the September 11, 2001, terrorist attacks.
The AUMF stipulates:
That the President is authorized 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, or harbored such organizations or
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persons, in order to prevent any future acts of
international terrorism against the United States
by such nations, organizations or persons.
AUMF § 2(a). In Hamdi v. Rumsfeld, the Supreme Court
confirmed that the President’s ability to detain “individuals
who fought against the United States in Afghanistan as part of
the Taliban . . . [in] support[] [of] the al Qaeda terrorist network
responsible for” the September 11, 2001, terrorist attacks is
authorized by the AUMF “for the duration of the particular
conflict in which they were captured.” 542 U.S. 507, 518
(2004) (plurality opinion). Congress reconfirmed this
authority in 2012 by authorizing the continued detention of
“covered persons” “without trial until the end of the hostilities
authorized by the AUMF.” National Defense Authorization
Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1021(c)(1),
125 Stat. 1298, 1562 (2011).
On May 25, 2005, Mr. al-Hela filed a petition for habeas
corpus challenging his detention on the ground that the
President lacked the authority to detain him. Following
Boumediene, the District Court judges consolidated most of the
pending habeas cases for administrative purposes, and the
District Court entered a Case Management Order mandating
the procedures for conducting discovery and merits
determinations for those petitions. See In re Guantanamo Bay
Detainee Litig., Misc. No. 08-0442, 2008 WL 4858241(D.D.C. Nov. 6, 2008), amended 2008 WL 5245890 (D.D.C.
Dec. 16, 2008) (hereinafter “Case Management Order”). The
Case Management Order was entered in Mr. al-Hela’s case and
governed his petition. See Dkt. 155; Dkt. 172.
Pursuant to the Case Management Order, the government
filed a Factual Return containing narrative and exhibits in
support of the decision to detain Mr. al-Hela, and it produced
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exculpatory evidence. Much of this information was classified,
and the Case Management Order prohibited Mr. al-Hela from
accessing classified information (other than his own
statements), but permitted his lawyers to access it, so long as
they had adequate security clearances. Case Management
Order §§ I.E.1, I.F. However, the Case Management Order
provided that the government could seek to have highly
sensitive classified documents reviewed and considered by the
court in camera and ex parte, including in instances where
petitioner’s counsel had the requisite clearance, id. § I.F., and
the government availed itself of that procedure with respect to
a subset of documents that were classified above the clearance
level of Mr. al-Hela’s lawyers. The government filed a Factual
Return justifying its detention decision in 2010 and an
Amended Factual Return in 2017.
Also pursuant to the Case Management Order, the District
Court applied a “presumption of regularity” to the
government’s documents, see Al Hela, unclass. slip op. at 22,
admitted hearsay as evidence, and used the preponderance of
the evidence standard to determine whether the government
proved the legal and factual basis for Mr. al-Hela’s detention.
Mr. al-Hela unsuccessfully challenged those procedures.
See Al-Hela v. Obama, No. 05-cv-1048, 2016 WL 2771804(D.D.C. May 13, 2016); Order, Al-Hela v. Obama, No. 05-cv-
1048 (D.D.C. Nov. 19, 2014).
After a merits hearing, at which Mr. al-Hela was the sole
witness, the District Court denied his habeas petition. See Al
Hela, unclass. slip op. at 82. In relevant part, the District Court
held that the AUMF permits the continued detention of Mr. al-
Hela because he “more likely than not was part of or
substantially supported al Qaeda, the Taliban, or associated
forces.” Id. at 22. See generally Al-Bihani v. Obama, 590 F.3d
11866, 872 (D.C. Cir. 2010). It accepted the government’s
evidence in support of Mr. al-Hela’s detention despite the
government’s reliance on anonymous, multi-layered hearsay
after reviewing some of the material ex parte, in camera. Al
Hela, unclass. slip op. at 25–27. The District Court also
concluded that “the due process clause does not apply to
Guantanamo detainees.” Id. at 23 (citing Kiyemba v. Obama,
555 F.3d 1022, 1026–27 (D.C. Cir. 2009) (Kiyemba I), vacated
and remanded, 559 U.S. 131 (2010) (per curiam) (Kiyemba II),
judgment reinstated as amended, 605 F.3d 1046, 1047–48
(D.C. Cir. 2010) (per curiam) (Kiyemba III)).
Petitioner filed a timely appeal. As noted above, a panel
of this Court affirmed the District Court’s decision, and we
granted rehearing en banc to consider whether Mr. al-Hela “is
entitled to relief on his claims under the Due Process Clause.”
2021 Al-Hela Order, 2021 WL 6753656, at *1.
II.
“[T]he writ of habeas corpus . . . [is] a remedy available to
effect discharge from any confinement contrary to the
Constitution or fundamental law,” Preiser v. Rodriguez, 411
U.S. 475, 485 (1973), including a claim that the petitioner “is
being unlawfully detained by the Executive or the military.”
Id. at 486. The Due Process Clause provides that “[n]o person
shall be . . . deprived of life, liberty, or property, without due
process of law.” U.S. CONST. amend. V. Accordingly, the writ
can be employed to ensure that the petitioner “was not deprived
of his liberty without due process of law.” Felts v. Murphy,
201 U.S. 123, 129 (1906). See generally RANDY HERTZ &
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JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND
PROCEDURE § 2.3 (7th ed. 2015).
But whether the Due Process Clause applies to a habeas
petition filed by a foreign national detained at the Guantanamo
Bay military base as an alleged enemy combatant is a question
that the Supreme Court has not yet answered. As noted above,
Boumediene established that the Suspension Clause applies to
such a petitioner. See 553 U.S. at 771. The Suspension Clause
and the Due Process Clause have distinct functions under the
Constitution. The Suspension Clause regulates when Congress
or the Executive can suspend the writ altogether, so that,
“except during periods of formal suspension, the Judiciary will
have a time-tested device, the writ, to maintain the ‘delicate
balance of governance’ that is itself the surest safeguard of
liberty.” Id. at 745 (quoting Hamdi, 542 U.S. at 536 (plurality
opinion)). The Due Process Clause regulates “the procedural
contours of [the] mechanism” used to exact the deprivation of
liberty. Hamdi, 542 U.S. at 525 (plurality opinion).
The doctrinal distinction between the two Clauses can blur
upon detailed examination, at least in the Guantanamo habeas
context as they do here. In Boumediene, the Court explained
that the Suspension Clause, “except during periods of formal
suspension,” 553 U.S. at 745, requires a habeas or habeas-
substitute process that enables courts to undertake “a
meaningful review of both the cause for detention and the
Executive’s power to detain,” id. at 783. Because the Court
held that the system of review in place under the Detainee
Treatment Act of 2005 did not provide an avenue of
“meaningful review” of the Executive’s detention decisions,
the writ was deemed to have been suspended. Id. at 792. But
the Court also explained that the Suspension Clause has
another aspect, the requirement that the habeas or habeas-
substitute procedures afford the detainee “a meaningful
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opportunity to demonstrate that he is being held [unlawfully].”
Id. at 779. The Court did not determine what detention review
procedures are required by the Due Process Clause, see id. at
783–85, and therefore left open the question of what difference,
if any, exists when courts review Executive detention decisions
pursuant to the Due Process Clause rather than the “meaningful
opportunity” standard under the Suspension Clause.
Since Boumediene, nearly all detainees have either based
challenges to their detention solely upon an alleged violation
of the “meaningful review” and “meaningful opportunity”
required by the Suspension Clause or argued that “meaningful
review” and “meaningful opportunity” are essentially
equivalent to the requirements of the Due Process Clause. We
have thus had little occasion to address the distinction, if any,
between the two clauses. As a result, we have a robust
collection of precedent applying the Suspension Clause’s
“meaningful review” standard to Guantanamo detainees, see,
e.g., Khan v. Obama, 655 F.3d 20, 31 (D.C. Cir. 2011); Uthman
v. Obama, 637 F.3d 400, 403 n.3 (D.C. Cir. 2011); Al-Bihani,
590 F.3d at 875–76, 879, 880; Odah v. United States, 611 F.3d
8, 13–14 (D.C. Cir. 2010), but very little addressing the
requirements of the Due Process Clause, see Ali, 959 F.3d at
369–73.
The government asks us to reject Mr. al-Hela’s petition
because, even assuming the Due Process Clause applies, he
received all the process he is due. Our dissenting colleagues
take issue with the government’s argument, protesting that it
constitutes a change in position. See Rao Op. 9; Randolph Op.
3. But the government’s primary position has always been that
this Court need not determine whether the Due Process Clause
extends to Mr. al-Hela and other Guantanamo detainees. See
Panel Resp. Br. 63 (“Because al-Hela’s detention comports
with both substantive and procedural due process, this Court
14
need not decide whether the Due Process Clause extends to
individuals such as al-Hela[.]”). And, as explained below, we
agree that this is the correct and most prudent course of action.
“[E]ven when a constitutional question must be joined,
courts must choose the narrowest constitutional path to
decision.” Ass’n of Am. R.Rs. v. United States Dep’t of Transp.,
896 F.3d 539, 544 (D.C. Cir. 2018) (citing Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 217 (1995)). See generally United
States v. Hayman, 342 U.S. 205, 223 (1952); Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring); Burton v. United States, 196 U.S. 283, 295 (1905).
As the Supreme Court admonished long ago, we should
“never . . . anticipate a question of constitutional law in
advance of the necessity of deciding it,” nor should we
“formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.” Liverpool,
N.Y. & Phila. Steam-Ship Co. v. Comm’rs of Emigration, 113
U.S. 33, 39 (1885). We abide by that guidance here because
“[t]hese rules are safe guides to sound judgment. It is the
dictate of wisdom to follow them closely and carefully.” Id.A holding that the Due Process Clause, assuming its
applicability, was satisfied by the habeas procedures employed
in this case would resolve solely those claims in this case and
those cases where a district court judge employed materially
indistinguishable mechanisms. By contrast, a holding that the
Due Process Clause does not apply to Guantanamo detainees
would resolve all potential future substantive and procedural
due process claims against all such detainees, regardless of the
nature of the substantive due process allegation or the
processes used by the district court judge to decide the merits
of any such petition. The non-applicability holding would also
apply beyond habeas petitions to foreclose all Due Process
Clause claims by non-citizens challenging the procedures or
15
rulings of military tribunals at Guantanamo. Because “[i]t is
customary in deciding a constitutional question to treat it in
its narrowest form,” Engel v. Vitale, 370 U.S. 421, 437 (1962)
(Douglas, J., concurring), and because the former ground is the
narrower ground for decision, we are obliged to resolve the
case using that option, if possible. See Plaut, 514 U.S. at 217(after analyzing the two different constitutional challenges
before it, the Court concluded that “the former is the narrower
ground for adjudication of the constitutional questions in the
case, and we therefore consider it first”).
Brushing aside these venerable jurisprudential principles,
Judge Rao and Judge Randolph would hold that the Due
Process Clause does not apply to noncitizens at Guantanamo.
See Rao Op. 1, 20; Randolph Op. 1–3. In their view, Johnson
v. Eisentrager, 339 U.S. 763 (1950), clearly established that the
Constitution does not extend to foreign citizens outside the
sovereign territory of the United States, Rao Op. 1, see
Randolph Op. 6, a clarity that seems to have eluded the
Supreme Court. See Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (distinguishing
Eisentrager by noting that “the Court has ruled that, under
some circumstances, foreign citizens . . . in ‘a territory’ under
the ‘indefinite’ and ‘complete and total control’ and ‘within the
constant jurisdiction’ of the United States []may possess certain
constitutional rights[,]” (quoting Boumediene, 553 U.S. at 755–
71)); see also Al Bahlul v. United States, 767 F.3d 1, 63, 65 &
n.3 (D.C. Cir. 2014) (en banc) (Kavanaugh, J., concurring in
the judgment in part and dissenting in part) (“As the
Government concedes, the Boumediene analysis leads
inexorably to the conclusion that the ex post facto right applies
at Guantanamo. It would be no more impracticable or
anomalous to apply the Article I, Section 9 ex post facto right
16
at Guantanamo than it is to apply the Article I, Section 9 habeas
corpus right at Guantanamo.”).
Through their efforts to find Eisentrager controlling, our
dissenting colleagues also recharacterize Circuit precedent by
isolating and relying on language from prior cases, divorcing
these quotes from the limited precedential holdings. For
example, Judges Rao and Randolph argue that, in Kiyemba I,
555 F.3d at 1026, we clearly held that the Due Process Clause
does not apply to foreign citizens detained at Guantanamo, a
clarity that has apparently eluded the government, see Resp.
Br. 34 (“[T]his Court has declined to decide the independent
applicability of the Due Process Clause and other constitutional
provisions [to Guantanamo detainees] on multiple occasions,
including while sitting en banc”) (emphasis added), and that
has similarly eluded prior panels of this court. See, e.g.,
Qassim v. Trump, 927 F.3d 522, 528, 530 (D.C. Cir. 2019)
(collecting cases) (clarifying that “the issue on appeal in
Kiyemba [I] was the narrow question of what remedy could be
given once the government conceded that it could not lawfully
hold [certain] detainees [in Guantanamo],” as “[w]e would not
have repeatedly reserved such Due Process Clause questions if
they had already been conclusively answered in Kiyemba [I]”);
Ali, 959 F.3d at 368 (holding that “[t]he district court’s decision
that the Due Process Clause is categorically inapplicable to
detainees at Guantanamo Bay was misplaced”). Our dissenting
colleagues’ reliance on additional Circuit precedent concerning
Guantanamo fails for similar reasons. See, e.g., Al-Madhwani
v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (abstaining
from holding that the Due Process Clause does not apply at
Guantanamo, because “[e]ven assuming” that the Clause
applies, the record showed any error would be harmless); Rasul
v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (per curiam)
(declining to “decide whether Boumediene portends
17
application of the Due Process Clause . . . to Guantanamo
detainees”).
As much as our dissenting colleagues would like us to
resolve the Eisentrager debate in one direction or the other,
deciding the applicability of the Due Process Clause is
unnecessary here, where, as explained below, we find that the
habeas procedures Mr. al-Hela received actually satisfy what
the Clause would require. Even when the Supreme Court has
recognized that the “logic of [its] cases” likely provides the
answer to whether a liberty interest protected by the Due
Process Clause is implicated, it has declined to so hold where,
even assuming the right applied, it was not violated in that
particular instance. See Cruzan v. Dir., Missouri Dep’t of
Health, 497 U.S. 261, 279–87 (1990). Indeed, the Court
regularly declines to decide whether a constitutional right
applies where, even assuming that it does, there is no
constitutional error because the challenged actions comported
with the right (or any such error was harmless). See, e.g., NASA
v. Nelson, 562 U.S. 134, 147 & n.10, 148–54 (2011) (assuming
without deciding that the Constitution protects a right to
informational privacy, plaintiffs’ claim failed because the
challenged questionnaire did not violate any such right);
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 619–20
(1992) (despite noting its prior holding that States of the Union
are not “persons” protected by the Due Process Clause, the
Court assumed that the Clause did apply to Argentina and held
the suit met the due process requisites of personal jurisdiction);
Rushen v. Spain, 464 U.S. 114, 118 n.2, 119–20 (1983) (where
state conceded that juror’s ex parte communication with trial
judge was constitutional error, the Court assumed without
deciding that the defendant’s constitutional rights were
18
implicated but found any error harmless because of the absence
of prejudice).
If that minimalist jurisprudential path is satisfactory to the
Court, then it must certainly be good enough for us. Judge Rao
seeks to reach conclusions about the extraterritorial application
of the entire Constitution with respect to foreign citizens writ
large. See Rao Op. 1 (“[A]liens outside the territorial United
States do not possess constitutional rights[.]”). But even the
government disagrees with such an approach and “urge[s] the
Court to decline to address the broader issue” as doing so
“would not affect the outcome here and would require
resolution of sensitive and complex constitutional questions[.]”
Resp. Br. 24. Out of respect for “the cardinal principle of
judicial restraint,” we take the narrower approach. PDK Labs.
Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment).
III.
We begin with Mr. al-Hela’s procedural due process
claims. He makes four challenges to the District Court’s
discovery and evidentiary procedures. He challenges: (1) the
use of the preponderance of the evidence standard to determine
whether he was an enemy combatant; (2) the application of the
presumption of regularity standard to the government’s
evidence; (3) the use of hearsay to justify his detention; and (4)
his inability to personally review most all of the classified
evidence against him and the District Court’s ex parte, in
camera review of the highly sensitive classified evidence
against him. Pet’r Br. 19.
The government correctly points out that Mr. al-Hela did
not raise the first two arguments before the panel, Resp. Br. 60,
19
which is grounds for forfeiture on rehearing, see United States
v. Whitmore, 384 F.3d 836, 836–37 (D.C. Cir. 2004) (per
curiam); Price v. Barry, 53 F.3d 369, 371 (D.C. Cir. 1995) (per
curiam). But given that we granted rehearing to determine
whether the Due Process Clause entitles Petitioner to relief, we
will exercise our discretion in this instance to consider all of
Mr. al-Hela’s due process arguments on rehearing. See Fox
Television Stations, Inc. v. FCC, 293 F.3d 537, 540 (D.C. Cir.
2002) (with respect to enforcing forfeiture of arguments that
were not raised before the panel at the rehearing stage, “our
practice is in fact more practical than rigid”).
A.
Mathews v. Eldridge, 424 U.S. 319 (1976), is the leading
authority for deciding what procedural protections are required
to comport with the Due Process Clause. Id. at 335. Mathews
explains that “‘[d]ue process,’ unlike some legal rules, is not a
technical conception with a fixed content unrelated to time,
place and circumstances.” Id. at 334 (alteration in original)
(quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895
(1961)). Accordingly, the analysis “is flexible and calls for
such procedural protections as the particular situation
demands.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471,
481 (1972)). The Court incorporated those concepts in a
venerated three-factor framework examining:
First, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and the
fiscal and administrative burdens that the
20
additional or substitute procedural requirement
would entail.
Id. at 335.
Even though Mathews involved a deprivation of property,
the Court has used the Mathews framework on multiple
occasions to adjudicate procedural due process claims
involving deprivations of liberty, such as juvenile and criminal
pretrial detention and involuntary civil commitment. See, e.g.,
Heller v. Doe, 509 U.S. 312, 330–31 (1993);
Zinermon v. Burch, 494 U.S. 113, 127–28 (1990); United
States v. Salerno, 481 U.S. 739, 746 (1987);
Schall v. Martin, 467 U.S. 253, 274–75 (1984); Addington v.
Texas, 441 U.S. 418, 425 (1979). (Curiously, notwithstanding
this precedent, Judge Randolph asserts that the Mathews
framework was never intended to apply to deprivations of
liberty and thus cannot be employed here. See Randolph Op.
7, 8 & n.10.).
The Hamdi plurality used the Mathews framework to
determine whether the mechanism used to review whether a
United States citizen detained as an enemy combatant accorded
with due process. 542 U.S. at 529–39. As the narrowest
opinion in favor of granting the detainee some relief, the Hamdi
plurality opinion is arguably controlling, see Boumediene, 553
U.S. at 814 (Roberts, C.J., and Scalia, Thomas & Alito, JJ.,
dissenting) (referring to the Hamdi plurality as the “controlling
opinion”), see also Doe v. Mattis, 928 F.3d 1, 14 (D.C. Cir.
2019) (treating the Hamdi plurality as binding); Al-Bihani, 590
F.3d at 872 (same), and, even if not, it is certainly persuasive
authority on the due process issue. See generally Marks v.
United States, 430 U.S. 188, 193 (1977); United States v. Epps,
707 F.3d 337, 349 (D.C. Cir. 2013) (describing our circuit’s
application of the Marks rule). (All further references and
21
citations to Hamdi are to the plurality opinion unless otherwise
noted.). For this reason, we must consider Hamdi, and in doing
so, we can glean several lessons from its analysis.
First, Hamdi teaches that “substantial interests lie on both
sides of the scale” in the context of enemy combatant
detention. 542 U.S. at 529. The interest in freedom from
detention is a fundamental liberty interest, and even though
Hamdi involved a U.S. citizen rather than a foreign national, it
cannot be gainsaid that Mr. al-Hela’s liberty interest is also
substantial. See Rasul v. Bush, 542 U.S 466, 480–82
(2004). “On the other side of the scale are the weighty and
sensitive governmental interests in ensuring that those who
have in fact fought with the enemy during a war do not return
to battle against the United States.” Hamdi, 542 U.S. at
531. Given the compelling interests on both sides, the Court
focused on achieving the “proper constitutional balance” by
zeroing in on whether the procedures used created a risk of
erroneous detention that was “unacceptably high,” and whether
the additional procedures proffered by the detainee were
unacceptable either because of their limited value in preventing
error or because of the burdens they would place on the
Executive. Id. at 532–33 (citing Mathews, 424 U.S. at
335). We believe it incumbent upon us to follow that
framework to determine whether the habeas procedures
afforded Mr. al-Hela satisfy due process. (Hamdi itself belies
Judge Randolph’s suggestion, (Randolph Op. 7–8, citing Weiss
v. United States, 510 U.S. 163, 177 (1994)), that the Court has
categorically refused to use Mathews to assess procedural due
process claims in contexts affected by military exigency or
national security. Weiss itself involved the courts-martial
justice system developed by Congress rather than, as here, a
habeas petition in an Article III court. We also reject Judge
Randolph’s invitation to rely upon an immigration case,
(Randolph Op. 7, citing DHS v. Thuraissigiam, 140 S. Ct. 195922
(2020)), when, as the Court explained, “Boumediene[] is not
about immigration at all[,]” Thuraissigiam, 140 S. Ct. at
1981.).
Another word on our approach before turning to Mr. al-
Hela’s claims. While Hamdi applied the three-factor test from
Mathews, the plurality summarized its due process holding as
requiring “meaningful opportunity to contest” and the right to
“challenge meaningfully” the Executive’s enemy combatant
finding. Id. at 509, 535 (emphases added). Describing the level
of rigor needed to satisfy due process using the adjective
“meaningful” was not a breakthrough. Indeed, Mathews itself
quoted earlier due process precedent and equated due process
with a “meaningful” opportunity to be heard. See Mathews,
424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545,
552 (1965)) (“The fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’”). Further examples abound. See, e.g.,
LaChance v. Erickson, 522 U.S. 262, 266 (1998) (“The core of
due process is the right to notice and a meaningful opportunity
to be heard.”); Jackson v. Virginia, 443 U.S. 307, 314 (1979)
(due process mandates “that a person cannot incur the loss of
liberty for an offense without notice and a meaningful
opportunity to defend”); Fuentes v. Shevin, 407 U.S. 67, 80
(1972) (“[N]otice and an opportunity to be heard must be
granted at a meaningful time and in a meaningful manner.”)
(internal quotation marks omitted); Boddie v. Connecticut, 401
U.S. 371, 377 (1971) (“[D]ue process requires, at a minimum,
that absent a countervailing state interest of overriding
significance, persons forced to settle their claims of right and
duty through the judicial process must be given a meaningful
opportunity to be heard.”).
Thus, it is quite notable that Boumediene similarly used
“meaningful” to describe the level of review compelled by the
23
Suspension Clause: “[T]he privilege of habeas corpus entitles
the prisoner to a meaningful opportunity to demonstrate that he
is being held [unlawfully].” 553 U.S. at 779 (emphasis added);
see also id. at 815 (Roberts, C.J., dissenting) (summarizing the
majority as holding that the Suspension Clause grants a
Guantanamo detainee a “meaningful opportunity” to
demonstrate he is being held unlawfully). As a result, the
review required by the Due Process and Suspension Clauses is
similar in scope in the specific circumstance of an alleged
enemy combatant’s challenge to wartime detention. Compare
Hamdi, 542 U.S. at 534 (finding due process is satisfied where
the review mechanism sufficiently mitigates the risk of an
erroneous deprivation of liberty and does not utilize procedures
that fail to add value or unduly burden the government), with
Boumediene, 553 U.S. at 785 (finding habeas substitute
procedures were inadequate under the Suspension Clause
because “there [was] considerable risk of error in the tribunal’s
findings of fact”).
Context also explains why the Suspension and Due
Process Clauses operate congruently in Guantanamo detainee
habeas cases. In the most common applications of the writ, the
district judge reviews a criminal conviction, where there is
already a well-developed body of caselaw prescribing the
requirements of due process, confrontation of witnesses,
effective assistance of counsel and every other constitutional
guarantee applicable to the proceeding employed by the
Executive to justify the detention. There, “meaningful review”
and “meaningful opportunity” pursuant to the Suspension
Clause require the court to use factfinding and decision-making
procedures that will ensure that the conduct of the criminal trial
comported with those predetermined constitutional standards.
But prior to Boumediene, there was no similarly detailed set of
constitutionally-tested procedures for enemy combatant
detention proceedings, such as the combatant status review
24
tribunal (CSRT) used in this case. Furthermore, the
government has not sought denial of the writ by requesting
deference to the CSRT findings or by arguing that the CSRT
mechanism comported with due process. Instead, as further
explained infra at 28–31, the government has abdicated
reliance on the CSRT findings and acceded to de novo review
of the legality of detention via the habeas proceedings. Thus,
assuming the Due Process Clause applies to Guantanamo
detainees, the habeas proceedings are not ascertaining whether
a prior detention determination (the CSRT) satisfied due
process—the habeas proceeding itself must satisfy due process.
In other words, the habeas proceeding that must provide the
“meaningful opportunity” to challenge the legality of detention
guaranteed by the Suspension Clause, Boumediene, 553 U.S. at
779, has also become the proceeding that must provide the
“right to notice and a meaningful opportunity to be heard”
guaranteed by the Due Process Clause, LaChance, 522 U.S. at
266, assuming due process applies.
In this case, the District Court measured its procedures
only against the Suspension Clause, because it ruled that the
Due Process Clause was not applicable to Mr. al-Hela. That
said, as explained below, the District Court’s application of
Boumediene’s “meaningful opportunity” and “meaningful
review” standards under the Suspension Clause was thorough
and carefully calibrated to minimize the risk of error without
unduly burdening the Executive. For this reason, we hold that
the procedures employed by the District Court in its effort to
satisfy the Suspension Clause also provided whatever process
would be required to satisfy Mathews’s context-dependent Due
Process Clause framework. Given the similarity between the
procedural protections afforded by both clauses in this
particular context, we perform the Mathews/Hamdi analysis for
each of Mr. al-Hela’s procedural due process claims. (The
distinctions Judge Randolph identifies between this case and
25
Hamdi, see Randolph Op. 4–5, do not render Hamdi inapposite.
Because we assume without deciding that the Due Process
Clause applies, we review to determine whether the present
circumstances satisfy the content of the Due Process Clause
right. Thus, we use Hamdi as a benchmark for the most robust
articulation of the standard to which a detainee in Mr. al-Hela’s
position could be entitled.). With this context, let’s press
forward.
B.
Mr. al-Hela challenges the preponderance of evidence
standard, the presumption of regularity, admission of hearsay,
and access to classified evidence. We recount the facts
pertinent to each of these contentions together because the
issues involving these claims are intertwined.
Under the Case Management Order, the government
presents its evidence supporting detention in a Factual Return,
supported by exhibits. See Case Management Order §
I.A. The detainee responds to the government’s allegations in
a Traverse. Id. § I.G. The District Court then determines
whether to grant judgment on the pleadings or to hold an
evidentiary hearing. Id. § III.B. The Case Management Order
provides that, upon consideration of the merits, the judge “may
accord a rebuttable presumption of accuracy and authenticity
to any evidence the government presents as justification for the
petitioner’s detention.” Id. § II.B. The petitioner must be given
the opportunity to rebut the presumption with respect to any or
all of the government’s documents. Id.
The District Court handled classified information within
the framework of the Case Management Order and a Protective
Order. The Protective Order specified that information
properly designated as classified could not be disclosed to
26
unauthorized persons. Dkt. 138, Protective Order §§ I.C., I.D
(hereinafter “Protective Order”). Accordingly, classified
information could only be disclosed to persons having a
security clearance at the appropriate level and a “need to know”
the classified information. Id. § I.D., ¶ 28; see also Exec. Order
No. 13,526, § 4.1(a)(3), 75 Fed. Reg. 707, 720 (Dec. 29, 2009)
(“A person may have access to classified information provided
that . . . the person has a need-to-know the information.”). The
Executive Order defines “need-to-know” as a determination
made within the executive branch “that a prospective recipient
requires access to specific classified information in order to
perform or assist in a lawful and authorized government
function.” Exec. Order No. 13,526, 75 Fed. Reg. at 729.
Mr. al-Hela’s lawyers presumably had a “need to know”
classified information relating to him, and the issues raised by
his petition. As long as they had adequate security clearances,
his attorneys had presumptive access to the government’s
classified filings and any classified discovery or evidence
proffered by the government. In contrast, because Mr. al-Hela
had no security clearance, he presumptively had no access to
classified filings, discovery, or evidence.
However, the governing orders also had exceptions to the
presumed practice. An amendment to the Protective Order
granted an exception for any statements made by Mr. al-Hela
which had been designated as classified. Dkt. 216; see also
Dkt. 215 at 6. Mr. al-Hela’s counsel could request to disclose
those statements to him, and if the government did not agree to
declassify the statement or provide Mr. al-Hela with a
classified substitute or redacted version that was amenable to
him, the parties could ask the District Court to resolve the
dispute. Dkt. 216; Dkt. 215 at 13. Cutting in the other
direction, the Case Management Order provided that the
government could move for an exception to disclosure. Case
27
Management Order § I.F. Thus, if the government believed
that classified information was highly sensitive and should not
be disclosed to Mr. al-Hela’s counsel regardless of security
clearances, the government could ask the District Court to
review that highly sensitive classified information in camera.
Id. The District Court would then determine whether the
government had presented sufficient justification to preclude
disclosure to Mr. al-Hela’s counsel. Id. The District Court
would hear any objections from Mr. al-Hela, and then hear any
particularized arguments by the government ex parte.
The Case Management Order also addressed the admission
and consideration of hearsay at the merits stage, specifying that
the judge “may admit and consider hearsay evidence that is
material and relevant to the legality of the petitioner’s
detention.” Case Management Order § II.C. However, the
Order made the admission and consideration of hearsay
evidence contingent on the showing that it “is reliable and that
the provision of nonhearsay evidence would unduly burden the
movant or interfere with the government’s efforts to protect
national security.” Id. Like the procedure used for the
presumption of regularity, the Order stated that a party
opposing admission of hearsay must be given an “opportunity
to challenge the credibility of, and weight to be accorded, such
evidence.” Id.
The Case Management Order further provides that after
the close of discovery, either party can file a motion for
judgment on the record. Id. § III.A. If the District Court
concludes that material issues of fact preclude a ruling on the
papers, then it must hold an evidentiary hearing at which the
government bears the burden of proving by a preponderance of
28
the evidence that the petitioner is an enemy combatant and
lawfully detained. Id. §§ II.A, III.B.
Those are the procedures in the abstract. Here is how they
played out in this case.
As mentioned, Mr. al-Hela filed his petition in 2005
asserting that he was unlawfully detained. In late 2010,
following the entry of the Case Management Order, the
government filed its Factual Return setting forth the asserted
legal and factual basis justifying his detention. Much of the
information in the Return’s narrative, and many of the 63
attached exhibits, contained classified information and were
therefore not accessible to Mr. al-Hela. See Abdul-Rahman Al-
Hela v. Obama, No. 05-cv-1048, 2016 WL 2771804, at *1
(D.D.C. May 13, 2016). Instead, the government prepared an
unclassified summary that provided Mr. al-Hela with a broad
overview of most of the facts and allegations in the
government’s Return. Id. However, Mr. al-Hela’s counsel had
access to the entirety of the 2010 Factual Return. Id.Mr. al-Hela filed a motion for access to the Factual Return,
asserting that he did not have adequate notice of the charges
against him and a meaningful opportunity to respond. Id. The
District Court denied the motion, ruling that the government
had shown that further disclosure would harm national security
by revealing intelligence sources and methods. Id. at *2–3.
Further, the District Court ruled that the unclassified summary
disclosed to Mr. al-Hela, in conjunction with the disclosures to
his lawyers, allowed him “the requisite opportunity to contest
his detention.” Id. at *3.
In the meantime, the government produced exculpatory
evidence to Petitioner and responded to his discovery requests,
producing over 500 additional documents. Again, many of
29
those documents were intelligence reports and other material
containing classified information, so they were disclosed to Mr.
al-Hela’s counsel, but not to him. However, there was some
material that the government did not want to disclose even to
counsel, and the government filed motions for exceptions to
disclosure with respect to that material. Some of the
government’s motions concerned potentially exculpatory
evidence—the government contended that the material was not
exculpatory, but it nevertheless requested an in camera, ex
parte review and ruling from the District Court to ensure
compliance with its discovery obligations. In at least one
instance, the District Court disagreed with the government,
deemed the material exculpatory, and ordered its disclosure.
See Resp. Br. Add. 4–5; Ex Parte Order of May 9, 2016.
Most of the government’s requests for in camera, ex parte
review involved inculpatory classified information that the
government considered too sensitive to disclose to Mr. al-
Hela’s counsel, even via classified substitute. The District
Court made clear that it did not wish to consider any
inculpatory evidence going to the merits on an ex parte basis
unless absolutely necessary. As such, the District Court
pressed the government on each of its requests for exception.
In a lengthy series of ex parte hearings and orders spanning
several months, the District Court denied many of the motions
for exception. Instead, the District Court ordered the
government to prepare classified substitute language for the
highly sensitive portions of the documents and to produce each
document with as few redactions as possible. The District
Court required that the government provide detailed
justifications for each redaction in every document, which were
sometimes rejected, resulting in an order to eliminate certain
redactions so that Mr. al-Hela’s counsel would have adequate
context to assess the information in the documents. The
District Court scrutinized the substitutes with equal care,
30
sometimes ordering the government to create more fulsome
versions. See Ex Parte Hr’g Trs. of Apr. 9, 2015, Apr. 14, 2015
& Apr. 28, 2015; Ex Parte Orders of June 30, 2015, Aug. 25,
2015, Dec. 17, 2015, Apr. 19, 2016, May 9, 2016 (two orders),
May 27, 2016, Dec. 23, 2016 & Jan. 22, 2018. See generally
Resp. Br. Add. 4–5. As a result of this back and forth, the
government withdrew its reliance on some documents
altogether, apparently because it did not wish to produce the
more robust classified substitute or the less-redacted version of
the document to Petitioner’s counsel. Ex Parte Hr’g Trs. of
Apr. 9, 2015, Apr. 14, 2015 & Apr. 28, 2015; see also Dkt 413-
1. In addition, the government agreed not to rely upon redacted
material in any documents to support detention. Dkt. 435 at 5;
Dkt. 441 at 6.
In any event, the upshot is that the government presented
only a handful of documents in support of Mr. al-Hela’s
detention to the District Court completely ex parte, and the
government only did so after the District Court found that the
material being withheld was especially sensitive and that its
disclosure to counsel—even in redacted form with substitute
language—would risk harm to national security. Ex Parte
Orders of May 9, 2016 & May 27, 2016. With respect to most
of the documents the government sought to exempt from
disclosure, the District Court ordered them disclosed with
adequate substitute language for the highly sensitive
information and with as few redactions as possible. And for
context, recall that the documents subject to the motions for
exemption from disclosure were a small subset of the hundreds
of documents that were produced to counsel.
After the close of discovery, the government filed an
Amended Factual Return that functioned as a compilation of
the evidence upon which it intended to rely at the merits
hearing to support detention. Per its standard practice in these
31
cases, the government did not rely solely upon the CSRT’s
findings to support detention, and the government did not ask
the District Court to defer to any findings or rulings of the
Tribunal when adjudicating Mr. al-Hela’s petition. See Oral
Arg. Tr. 44, 83, 94. See generally Al-Adahi v. Obama, 613 F.3d
1102, 1105 n.2 (D.C. Cir. 2010) (observing that the
government followed this practice). Petitioner then filed his
Traverse, setting forth his legal argument and evidence in
support of the contention that he is unlawfully detained. Each
party filed motions for judgment on the record, which
functioned essentially as pre-trial briefs. The District Court
then held a hearing on the merits of the petition, at which Mr.
al-Hela was the only live witness. The remaining evidence
presented by the government and Petitioner was proffered via
affidavit and documentary exhibits. Following post-trial
briefing, the District Court denied the petition in a written
decision in which it applied the presumption of regularity to the
government’s evidence, admitted and credited some hearsay
presented by each party, and ruled that the government had
proved by a preponderance of the evidence that Mr. al-Hela is
an enemy combatant and is therefore lawfully detained.
C.
Relying principally on Addington v. Texas, 441 U.S. at
423, 427, 433, Mr. al-Hela claims that use of the preponderance
of the evidence standard of proof to determine whether he is an
enemy combatant violates due process. In Addington, the
Court applied the three factors from Mathews to conclude that
the preponderance of the evidence standard in civil
commitment proceedings—for those alleged to be mentally ill
and dangerous—violates due process. Id. at 425–32. Instead,
32
the Court held that the clear and convincing evidence standard
must govern. Id. at 432–33.
For several reasons, we find Addington and its progeny
distinguishable. See generally Foucha v. Louisiana, 504 U.S.
71 (1992). We acknowledge that the private interest in freedom
from involuntary detention as an enemy combatant is akin to
an individual’s interest in avoiding confinement in a mental
hospital, and the higher standard of proof also reflects the
importance we place on human liberty. See Addington, 441
U.S. at 425–26. And of course, the use of the more stringent
standard of proof would reduce the risk of an erroneous enemy
combatant determination, just as the clear and convincing
evidence standard reduces the risk that a person who is not
mentally ill or dangerous will be erroneously committed. But
that is where the similarities end.
First, Addington concluded that the state interest is not
furthered by use of the preponderance standard for civil
commitment. At the time, every state but one used a higher
standard than preponderance of the evidence, thus reflecting
the prevailing state interest in protecting individual rights of the
mentally ill and those who periodically experience emotional
difficulties. Id. at 426–27. By contrast, the pertinent U.S.
military regulations, which are domestic law based upon
internationally recognized law of war principles, see Al Warafi
v. Obama, 716 F.3d 627, 629 (D.C. Cir. 2013); Al-Bihani v.
Obama, 619 F.3d 1, 13–14 (D.C. Cir. 2010) (Mem.)
(Kavanaugh, J., concurring in the denial of rehearing en banc),
have long provided that enemy combatant status is to be
determined by the preponderance of the evidence. U.S. Dep’ts
of the Army, the Navy, the Air Force, and the Marine Corps,
Army Regulation 190–8, Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees ch. 1, § 1–
6(e)(9) (Oct. 1, 1997). These regulations reflect the state
33
interest in supporting the preponderance standard in this
context, in a way that domestic law did not support the state
interest in applying the preponderance standard in the civil
commitment context.
Most importantly, the risk of harm analysis is quite
different here than in the civil commitment context. Addington
rejected the preponderance standard because that standard
allows litigants to “share the risk of error in roughly equal
fashion,” 441 U.S. at 423, and “[t]he individual should not be
asked to share equally with society the risk of error when the
possible injury to the individual is significantly greater than
any possible harm to the state,” id. at 427. Given “the particular
dangers of terrorism in the modern age,” the possible harm to
the state if an enemy combatant is erroneously released is much
greater than the possible harm posed by the typical person
subject to a civil commitment proceeding. Boumediene, 553
U.S. at 752; see also id. at 797 (“The law must accord the
Executive substantial authority to apprehend and detain those
who pose a real danger to our security.”). For similar reasons,
we are not persuaded that cases mandating the clear and
convincing evidence standard in the deportation and
denaturalization contexts are forceful analogues here because
there was no consideration in those cases that the imposition of
a higher standard of proof could create a significant risk to
national security. See Woodby v. INS, 385 U.S. 276, 285–86
(1966); Nowak v. United States, 356 U.S. 660, 663–64 (1958).
With so much at stake for national security, we conclude
that it is appropriate that Mr. al-Hela, a foreign national
detained as an enemy combatant and suspected of substantially
supporting designated terrorist organizations, share the risk of
error nearly equally with U.S. society. Cf. Boumediene, 553
U.S. at 766–71 (ruling that whether petitioners were U.S.
citizens was relevant to the Suspension Clause analysis). Our
34
conclusion is buttressed by the fact that domestic law interprets
the preponderance of the evidence standard as consistent with
the requirements of the law of war for this type of
determination. Army Regulation 190–8 at ch. 1, §§ 1–1, 1–
6(a), (e)(9); see Al Warafi, 716 F.3d at 629. We therefore
uphold the District Court’s use of the preponderance of the
evidence standard as consistent with the requirements of the
Due Process Clause.
D.
As noted above, the Case Management Order specified
that the judge “may accord a rebuttable presumption of
accuracy and authenticity to any evidence the government
presents as justification for the petitioner’s detention.” Case
Management Order § II.B. In its opinion on the merits, the
District Court ruled that “intelligence reports and interrogation
reports are entitled to the presumption of regularity.” Al Hela,
unclass. slip op. at 22. Mr. al-Hela contends that these
government documents were not worthy of such deference and
that placing the burden on him to rebut the presumption of
regularity denied him due process. We are not persuaded.
“The presumption of regularity supports the official acts
of public officers and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged
their official duties.” Nat’l Archives & Recs. Admin. v. Favish,
541 U.S. 157, 174 (2004) (internal quotation marks and citation
omitted). As used in the Case Management Order and applied
by the District Court, the presumption of regularity assumes
that the government’s documents “accurately identif[y] the
source and accurately summarize[] [the source’s] statement,
but [] implies nothing about the truth of the underlying non-
government source’s statement.” Latif v. Obama, 677 F.3d
1175, 1180 (D.C. Cir. 2012). This presumption can be rebutted
35
if a petitioner demonstrates internal inconsistencies or
inconsistencies with other evidence. Id. at 1185–86.
Applying the presumption of regularity did not violate due
process. Unlike the hearsay exception for official government
records, see FED. R. EVID. 803(8), the presumption of regularity
does not go to the truth of any statement contained in the
government’s documents, but merely to whether the contents
of the statements were accurately recorded. As such, there was
not a significant risk that use of the presumption of regularity
increased the chance of error, as would have been the case if
this was a presumption that the statements in the documents
were actually true. The District Court scrutinized the
government’s documents and provided opportunities for Mr.
al-Hela to raise concerns about the authenticity or accuracy of
the documents. See Al Hela, unclass. slip op. at 24–28
(detailing the evaluation of the evidence).
Returning explicitly to the Mathews calculus, the
government interest in the application of the presumption is
quite significant. For good reason. The administrative burdens
that would accompany having to authenticate and lay a
foundation for the introduction of each of the dozens of
intelligence reports and other documents at issue would require
testimony from the documents’ authors. See Latif, 677 F.3d at
1179 (eliminating the presumption of regularity “would subject
all such documents to the he-said/she-said balancing test of
ordinary evidence”). Those authors—members of the military,
intelligence, and diplomatic communities located all over the
world—would need to be hauled into court to testify as to
whether a document was accurately recorded. See FED. R.
EVID. 901. How often is that additional process likely to
uncover an error of material proportions? Like the public
records exception to the rule against hearsay, the presumption
of regularity can be justified on “the assumption that a public
36
official will perform his duty properly and the unlikelihood that
he will remember details independently of the record.” 1972
Adv. Cmte. Note to Fed. R. Evid. 803, Note to paragraph (8).
We acknowledge that records are not infallible, and Mr. al-
Hela and amicus point out instances of transcription and other
errors that have been discovered. But we must weigh the
likelihood that any material error will be discovered against the
burden of bringing every single document’s author into court.
On balance, these burdens far outweigh the probable value of
eliminating the presumption of regularity altogether,
particularly since the presumption is rebuttable. That is enough
to convince us that abandoning the presumption of regularity is
not appropriate under Mathews.
Accordingly, we decline Mr. al-Hela’s invitation to strike
down the presumption of regularity as violative of due process.
E.
Next, Petitioner contends that the broad admission of
hearsay in his case violated due process, particularly because,
in many documents the identity of the declarant was redacted
or the documents contained multiple layers of hearsay.
These contentions face serious headwinds from Supreme
Court precedent. It is well settled that the requirements of due
process are flexible and highly dependent on context. Hence,
whether due process mandates the use of the Federal Rules of
Evidence in a civil or criminal trial is not dispositive of whether
the same is required in this quite different context. See, e.g.,
Morrissey, 408 U.S. at 481–89 (due process did not prohibit
admission of letters, affidavits and other documents in parole
revocation hearing even though not admissible in a criminal
trial). The Court reiterated this message in Hamdi, observing
that the exigencies of war “may demand that” enemy-
37
combatant proceedings “be tailored to alleviate their
uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U.S. at 533. For instance, it
observed that “[h]earsay . . . may need to be accepted as the
most reliable available evidence from the Government in such
a proceeding.” Id. at 533–34. The exigencies that Hamdi’s
context-specific approach highlighted may differ now from
what they were in the immediate aftermath of September 11,
2001. But, at a minimum, the evolving context reinforces
Hamdi’s premise that the admission of hearsay in enemy
combatant proceedings is compatible with the Due Process
Clause, so long as the district court carefully assesses whether
it is indeed “the most reliable available evidence.” Id. at 534.
The District Court carefully evaluated all the evidence
proffered by the government and assessed the reliability of all
hearsay. Cognizant of its responsibility to ensure that the
evidence relied upon for detention was reliable, the District
Court excluded or refused to rely upon some of the hearsay
statements proffered by the government after concluding that
they were unreliable or insufficiently corroborated. Al Hela,
unclass. slip op. at 28, 41–42. The District Court made
multiple reliability findings throughout its opinion, see id. at
27–28, 34, 39–42, 45, 50, 58, 65, 72–73, 75, and where the
District Court chose to rely on certain hearsay statements over
others, it explained its reasoning for finding that evidence more
reliable. See id. at 44, 46. This is the type of rigorous
evidentiary analysis we expect from the District Court. See
Odah, 611 F.3d at 14. Both in its opinion and in the numerous
hearings and rulings regarding discovery and disclosure, the
District Court demonstrated that it meticulously reviewed all
the evidence proffered by the government to compare and
38
contrast the various hearsay statements and determine which
statements were corroborated and reliable.
These actions, taken as a whole, “sufficed to provide
meaningful protections of due process interests in adequate
notice and accurate decision making, and prevent government
overreach.” Fares v. Smith, 901 F.3d 315, 319 (D.C. Cir.
2018). As a result of such careful and discerning review of the
documents containing hearsay, as evidenced by the District
Court’s numerous reliability findings, we find no due process
violation related to the admission of hearsay.
We have sought, within the limits of a substantially
classified record, to describe the “rigorous evidentiary
analysis” in which the District Court engaged because that is
what provides the grounding for our considered conclusion that
“th[o]se actions, taken as a whole,” satisfied the Mathews due
process balancing. Op., supra at 36, see id. at 25–39. All we
are saying is that while seeking to craft case management
procedures that satisfied the Suspension Clause, the District
Court created a mechanism, as implemented here, that also
satisfies the Due Process Clause. It is hardly surprising that
procedures designed to provide “meaningful review” pursuant
to the Suspension Clause would coincidentally provide a
“meaningful opportunity to be heard” as required by the Due
Process Clause and compatible with Hamdi. Indeed, when
drafting the Case Management Order, the District Court
indicated that it was “proceeding with the caution” advised by
Hamdi, Dkt. 155, Case Management Order Introduction
(quoting Hamdi), and it adopted habeas procedures very
similar to those approved in Hamdi, citing the Hamdi plurality
no less than seven times in the Order. See Dkt. 155, Case
Management Order §§ I.A., I.E.2., I.G., II.B., II.C., 1.F.; Dkt.
172; Case Management Order § 1.G. We therefore hold,
assuming the Due Process Clause applies, that Mr. al-Hela’s
39
procedural due process rights were not violated. The panel
rejected Mr. al-Hela’s Suspension Clause claims and those
claims are not before us on rehearing. As to the criticism that
we have “appl[ied] a watered-down version of the Due Process
Clause[,]” Rao Op. 24, we note that we proceeded with the
same caution and in the same manner as the plurality in Hamdi,
which hardly employed a “watered-down” application of the
Clause.
F.
Mr. al-Hela makes two final due process challenges related
to the District Court’s procedures for handling access to
classified information. He contends that his inability to review
classified information violated due process because he was not
given adequate notice of the charges against him and therefore
could not adequately respond. Further, and most troublingly,
he contends that the ex parte review of government evidence
by the District Court violated due process.
The government argues that our consideration of this issue
is wholly governed by Al Odah v. United States, 559 F.3d 539(D.C. Cir. 2009) (per curiam). But Al Odah involved what
discovery the petitioner was entitled to prior to filing his
Traverse. See id. at 542–43. Compare Odah, 611 F.3d at 11(appeal after hearing on the merits), with Al Odah, 559 F.3d at542–43. By contrast, this case implicates not just whether the
detainee’s counsel has access prior to filing the Traverse, but
also whether counsel will ever have the opportunity to see the
document prior to or during the merits determination. This
distinction is critical. Procedures whereby all the
government’s evidence is not disclosed in advance of trial are
commonplace, including in almost all criminal trials. See, e.g.,
FED. R. CRIM. P. 16(a)(2) (defendant not entitled to pretrial
discovery of prosecution witnesses’ statements). However,
40
procedures whereby neither the person affected by the
government’s proposed action, nor his counsel, are permitted
to view all the government’s evidence during the merits
determination are rare, and any such procedures raise more
serious due process concerns regarding notice and opportunity
to rebut. Contrary to the government’s view, Al Odah did not
address this distinction.
The District Court was highly cognizant of the challenges
posed by the nature of this case and put forth a yeoman effort
to mitigate the harms to Mr. al-Hela and his counsel. Petitioner
was given an unclassified summary of the Factual Return. We
note that Army Regulation 190–8, which reflects the domestic
interpretation of international law requirements for the
treatment of prisoners of war, allows a military tribunal to
exclude the detainee from hearing the classified evidence
introduced against him. See Army Reg. 190–8 at § 1–6(e)(3)
(“Proceedings shall be open except for deliberation and voting
by the members and testimony or other matters which would
compromise security if held in the open.”). Thus, the District
Court continued its general practice of providing Petitioner as
helpful a substitute as federal law would allow.
With respect to the government’s motions to except certain
documents from disclosure to Mr. al-Hela’s counsel, the
District Court proceeded with extreme care. The default
position of the Case Management Order is that “the
government shall, unless granted an exception by the Merits
Judge, provide the petitioner’s counsel with the classified
information, provided the petitioner’s counsel is cleared to
access such information.” Dkt. 172, Case Management Order
§ 1.F. (emphases added). A problem arose because Mr. al-
Hela’s counsel held clearances at the Secret level, but some of
the government’s evidence in support of detention was
classified as Top Secret or deemed Sensitive Compartmented
41
Information, which Petitioner’s counsel did not have clearance
to view. Top Secret information is classified as such because
the Executive has concluded that its unauthorized disclosure
“could reasonably be expected to cause exceptionally grave
damage to the national security.” 41 C.F.R. § 105-62.101(a). It
is a violation of federal law to disclose classified information
to someone who has not been cleared to receive it. See 18
U.S.C. § 798; Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec.
29, 2009).
In a footnote, Mr. al-Hela states that “[i]f this was the
reason for nondisclosure, then the Government should have
allowed [his] counsel to apply for Top Secret clearances[.]”
Pet’r Br. 54 n.16. But Mr. al-Hela cites nothing from the
District Court record indicating that his counsel sought Top
Secret or Sensitive Compartmented Information clearances, or
sought to associate with co-counsel who already held the
requisite clearances. Lacking any record allowing us to assess
meaningfully any objection to inadequate clearance, we do not
opine on the more difficult question of whether the District
Court can consider classified evidence in support of detention
at the merits stage on an ex parte basis where the detainee’s
counsel held the requisite security clearance or the government
unreasonably withheld granting the requisite clearance.
Before hearing from the government on the motions for
exception from disclosure, the District Court allowed
Petitioner’s counsel to explain their theory of how and why
certain classes of documents were exculpatory. This gave the
court the benefit of that reasoning when reviewing the
documents with the government ex parte and issuing a ruling.
Indeed, as stated above, the District Court ordered the
disclosure of some documents as exculpatory over the
government’s initial objection. See Resp. Br. Add. 4–5; Ex
Parte Orders of May 9, 2016 & Jan. 23, 2018. With regard to
42
any highly sensitive, classified information that pertained to the
government’s basis for detaining Petitioner, the District Court
denied most of the requests to exempt the documents
completely from disclosure to Mr. al-Hela’s counsel. Instead,
the District Court required the government to provide a copy of
the document with the fewest redactions possible, and to justify
each and every redaction. In addition, the District Court
required the government to provide an adequate summary of
the highly sensitive information wherever possible, such that
Mr. al-Hela’s counsel had a sufficient opportunity to rebut the
government’s asserted factual basis for Petitioner’s detention
(and to exploit exculpatory information). In several instances,
the government elected to withdraw its reliance upon a
document altogether rather than comply with the disclosure
order. As a result, only a small number of documents in
support of Mr. al-Hela’s detention were reviewed by the
District Court ex parte at the merits stage, and only after a
finding that the material being withheld was especially
sensitive and that its disclosure—even in redacted form or with
substitute language—would risk harm to national security.
(Our review of this issue was unnecessarily difficult because
the government failed to provide us with the dispositions of
each motion for exception, the District Court docket did not
initially list all of the ex parte proceedings, and the exhibit list
did not identify which ex parte exhibits were considered by the
court at the merits stage, oversights that we expect not to recur
in future appeals. With the assistance of the District Court and
the government, we were later able to reassemble and review
the entire record.).
The District Court faced a daunting challenge. As the
Supreme Court ruled in Hamdi, 542 U.S. at 533, the core of
procedural due process requires that the petitioner “receive
notice of the factual basis for his classification, and a fair
opportunity to rebut the Government’s factual assertions[,]”
43
and the petitioner cannot respond to or rebut evidence in
support of detention if his lawyer is not even provided a
classified summary of that evidence. On the other side of the
scale, “[t]he Government has a compelling interest in
protecting both the secrecy of information important to our
national security and the appearance of confidentiality so
essential to the effective operation of our foreign intelligence
service.” Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)
(per curiam).
In light of these competing interests, the District Court
compelled the government to provide adequate substitutions
and the fewest possible redactions, so that documents classified
as Top Secret or containing Sensitive Compartmented
Information could be reclassified at the Secret classification
level and therefore disclosed to Mr. al-Hela’s counsel pursuant
to federal law and the Protective Order. Under the
circumstances, we do not believe that the District Court abused
its discretion in failing to order either disclosure of those highly
sensitive documents to Mr. al-Hela’s counsel or the exclusion
of those documents from the government’s case.
The ex parte documents consisted of only a very small
subset of the government’s case, both quantitatively and
qualitatively. The District Court’s reliance on ex parte
evidence was tightly circumscribed and generally used not to
break new ground, but rather to test whether other evidence
was corroborated. For example, when weighing aspects of Mr.
al-Hela’s testimony that apparently conflicted with his own
earlier statements, the District Court agreed with the
government’s contention that the court should credit the earlier
statements. In rejecting Mr. al-Hela’s argument that those
earlier statements must have been mistranslated, the court cited
an array of evidence, only one facet of which drew from ex
parte materials. J.A. 152–53. Mr. al-Hela was able to (and
44
frequently did) challenge the government’s contentions on
other bases, despite the conceded limitations posed by his
counsel’s access restraints. E.g., J.A. 190. And the District
Court’s use of ex parte evidence did not invariably favor the
government—in one instance, the court referenced ex parte
evidence to reject as unreliable certain evidence the
government had proffered. J.A. 156–57 n.10. Thus, although
the District Court did not have the full benefit of adversarial
presentation, the record shows that the District Court
considered ex parte documents only to a very minimal degree,
and that it did so with the inquisitive and evenhanded manner
required under the extraordinary circumstances. See also Oral
Arg. Tr. 46:11–15 (per government counsel, “the [D]istrict
[C]ourt relied on ex parte documents in four instances and only
in each instance to make a credibility determination with
respect to a source, three times finding the source credible and
one time finding the source not credible”).
This judicious and common-sense approach sufficiently
reduced the risk of an erroneous deprivation of liberty while
mitigating the burdens to both parties as much as possible.
Though providing additional disclosures would no doubt have
been helpful to Mr. al-Hela and his counsel, the provision of
that additional process is outweighed by the government’s
specifically identified competing national security interests in
nondisclosure of this highly sensitive information. As the
Supreme Court admonished in Boumediene, “the Government
has a legitimate interest in protecting sources and methods of
intelligence gathering; and we expect that the District Court
will use its discretion to accommodate this interest to the
greatest extent possible.” 553 U.S. at 796. While the question
is close, we hold that the balance struck by the District Court
in this case comported with the Due Process Clause, given the
rigorous review of classified substitutes, the minimization of
redactions, the non-reliance on redacted material in support of
45
detention, the minimal amount of ex parte evidence, and the
close scrutiny of the reliability of the ex parte evidence and all
hearsay evidence. We doubt that anything less would suffice.
IV.
We turn next to Petitioner’s argument that his continued
and prolonged detention without charge or trial amounts to a
substantive due process violation.
Substantive due process “prevents the government from
engaging in conduct that shocks the conscience, or interferes
with rights implicit in the concept of ordered liberty[.]”
Salerno, 481 U.S. at 746 (internal citations and quotation marks
omitted); see also Ali, 959 F.3d at 369–70 (defining “arbitrary”
to include any government action that can “fairly be said to
shock the conscience”); Estate of Phillips v. District of
Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (“[T]he
conscience-shock inquiry is a threshold question in a due
process challenge to executive action.” (citations and quotation
marks omitted)). Put another way, 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, 504 U.S. at 80 (quotation
marks omitted). In sum, the substantive aspect of due process
tests the government’s justification and authority to deprive
Mr. al-Hela of his liberty.
A.
Mr. al-Hela claims that two decades of indefinite detention
without charge or trial exceed whatever original purpose may
have existed for his detention and is now punitive.
Again assuming (without deciding) that substantive due
process protections apply to noncitizen Guantanamo detainees,
46
we reject Petitioner’s contention that the duration of his
detention, in and of itself, entitles him to relief. The length of
Mr. al-Hela’s detention is neither arbitrary nor conscience-
shocking merely because the AUMF imposes no time limits on
the detention of enemy combatants. “[Mr. al-Hela]’s detention
is long because the armed conflict out of which it arises has
been long[.]” Ali, 959 F.3d at 370. Although American troops
withdrew from Afghanistan in August 2021, Petitioner does
not argue that the armed conflict out of which his detention
arises has concluded, and because “[w]ar does not cease with a
cease-fire order,” the President’s war powers “[are] not
exhausted when the shooting stops.” Ludecke v. Watkins, 335
U.S. 160, 167 (1948). We have no occasion here to consider
whether, in circumstances in which an armed conflict may
continue essentially in name only, the notion that a lengthy
conflict supports a commensurately lengthy detention might
give way. Cf. Hamdi, 542 U.S. at 521 (“If the practical
circumstances of a given conflict are entirely unlike those of
the conflicts that informed the development of the law of war,
that understanding may unravel.”). Petitioner makes no such
argument in this case.
Insofar as Mr. al-Hela contends that his detention violates
substantive due process principles because he was never an
enemy combatant, that claim too is rejected. The District Court
found Mr. al-Hela more likely than not substantially supported
al Qaeda and its associated forces. As the panel determined,
there was sufficient evidence of Mr. al-Hela’s status as an
enemy combatant and the District Court’s finding was not
clearly erroneous. Al Hela, 972 F.3d at 134.
B.
Prior to argument, the Periodic Review Board, a body that
reviews the continued detention of individuals at Guantanamo
pursuant to Executive Order 13,567, determined by consensus
“that continued law of war detention [of Mr. al-Hela] is no
47
longer necessary to protect against a continuing significant
threat to the security of the United States.” See Periodic
Review Board Determination. Mr. al-Hela argues that since he
is no longer a threat to the United States, his continued
detention is arbitrary and therefore violative of substantive due
process. See, e.g., County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998) (substantive due process violated by “the
exercise of power without any reasonable justification in the
service of a legitimate governmental objective”); Comm. of
U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 944
(D.C. Cir. 1988) (substantive due process prohibits “action that
is ‘legally irrational [in that] it is not sufficiently keyed to any
legitimate state interests’”) (citation omitted). For several
reasons, we believe that this substantive due process claim
should be remanded to the District Court and express no views
on its merits.
First, given the finding of the Periodic Review Board, the
Executive Order mandates that “the Secretaries of State and
Defense shall be responsible for ensuring that vigorous efforts
are undertaken to identify a suitable transfer location for [Mr.
al-Hela] outside of the United States. . .” § 4(a), 76 Fed. Reg.
at 13,279. At oral argument, Petitioner’s counsel did not
clearly specify how the relief Mr. al-Hela could obtain if he
prevailed on the substantive due process claim would differ
from the undertakings mandated by the Executive Order. See,
e.g., Oral Arg. Tr. 11–14. If the Executive Order provides Mr.
al-Hela with the same relief that he could obtain from a
successful substantive due process challenge, the constitutional
claim could be moot (particularly if Mr. al-Hela can enforce
any aspect of the Executive Order). This issue was not briefed
by the parties and should be addressed by the District Court in
the first instance. Again, we express no view on its merits.
48
Second, in setting forth its legal authority for detention
below, the government conceded that “[t]he detention authority
conferred by the AUMF is necessarily informed by principles
of the laws of war.” Dkt. 192 at 1 (citing Hamdi, 542 U.S. at
521); see also National Defense Authorization Act for Fiscal
Year 2012 § 1021(a) (“Congress 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 . . . pending disposition under the law of war.”)
(emphases added). Thus, the government agreed that
“[p]rinciples derived from law-of-war rules governing
international armed conflicts . . . must inform the interpretation
of the detention authority Congress has authorized for the
current armed conflict.” Dkt. 192 at 1. The Executive Order
provides that “[c]ontinued law of war detention is warranted
for a detainee . . . if it is necessary to protect against a
significant threat to the security of the United States[,]” 76 Fed.
Reg. at 13,277. Thus, contrary to the protestations of Judge
Rao (Rao Op. 2, 21, 27–28, 31), statements of the political
branches could be construed as suggesting that law of war
principles have at least some relevance, since the Executive
concedes those principles “inform” the President’s authority
under the AUMF and Congress cited law of war principles
when affirming the President’s detention authority in 2012.
Accordingly, the Periodic Review Board’s finding that Mr.
al-Hela’s detention is no longer necessary to protect against a
significant threat to the United States could be construed as
implicitly undermining the contention that Mr. al-Hela’s
detention remains justified by the law of war and the AUMF.
The Periodic Review Board also found a “lack of indication
that [Mr. al-Hela] harbors extremist beliefs or intentions to
reengage,” Periodic Review Board Determination, which is
significant given that the “purpose of [law of war] detention is
49
to prevent captured individuals from returning to the field of
battle and taking up arms once again[,]” Hamdi, 542 U.S. at
518; cf. Ali, 959 F.3d at 370 (“Ali’s detention still serves the
established law-of-war purpose of preventing captured
individuals from returning to the field of battle and taking up
arms once again.”) (formatting modified and internal quotation
marks and citation omitted). The question of whether the
Periodic Review Board’s Determination renders Petitioner’s
continued detention unlawful under the AUMF should be
resolved. Whether the laws of war place any limits on the
President’s detention authority under the AUMF is an open
question in our circuit and should be addressed by the District
Court in the first instance. Judge Rao contends (Rao Op. 27–
28) that Al-Bihani held that international laws of war cannot
limit the President’s authority under the AUMF. See 590 F.3d
at 871. But as she acknowledges, Rao Op. 27–28, seven of the
nine members of the en banc Court denied the petition for
rehearing. In doing so, the majority of the en banc Court
explained that the Al-Bihani panel’s law-of-war discussion was
“not necessary to the disposition of the merits” and was
therefore nonbinding dictum. See Al-Bihani, 619 F.3d at 1(Mem.) (Sentelle, C.J., and Ginsburg, Henderson, Rogers,
Tatel, Garland & Griffith, JJ., concurring in the denial of
rehearing en banc). We adhere to that position today.
Even if, as the government has argued, the Determination
does not create any right or benefit that is enforceable by Mr.
al-Hela, see Executive Order 13,567 § 10(c), 76 Fed. Reg. at
13,280, the government’s factual findings could nonetheless be
relevant to a court’s consideration of whether Mr. al-Hela’s
continued detention violates the law of war and thus potentially
contravenes the statutory authority conferred by the AUMF.
To be sure, Congress has said that “the purpose of the periodic
review process is not to determine the legality of any detainee’s
law of war detention,” National Defense Authorization Act for
50
Fiscal Year 2012 § 1023(b)(1); see also Executive Order
13,567, 76 Fed. Reg. at 13,279 (“The process established under
this order does not address the legality of any detainee’s law of
war detention[]”), but it is a different question whether factual
findings underlying a Periodic Review Board decision are
admissible and how, if at all, such findings affect the legality
of a petitioner’s detention. Cf. Beech Aircraft Corp. v. Rainey,
488 U.S. 153, 170 & n.13 (noting that whether “legal
conclusions” from an official report are admissible under
Federal Rule of Evidence 803(8) is a different question than
whether “findings of fact” in an official report of a legally
authorized investigation are admissible). Because the effect of
the government’s findings on its AUMF detention authority
was not briefed by the parties, and, if Mr. al-Hela were to
prevail, this statutory claim would afford a non-constitutional
ground for granting relief, the issue should be addressed by the
District Court in the first instance.
Once again, we express no view on the merits of Mr. al-
Hela’s statutory claim or his substantive due process claim.
(Judge Rao incorrectly posits that by expressing no view on the
merits of the substantive due process claim, we have
nonetheless somehow “effectively conclude[d] that al-Hela
enjoys the protections of substantive due process.” Rao Op.
31.). Rather, we remand the statutory claim to enable the
District Court to consider the effect, if any, of the Periodic
Review Board’s Determination on the lawfulness of Mr. al-
Hela’s detention under the AUMF. As such, the District Court
need only reach the merits of the overlapping substantive due
process claim if it finds that the claim is not moot and that the
statutory claim is without merit.
***
We affirm the finding that Mr. al-Hela is an enemy
combatant because the District Court’s procedures at the merits
51
stage, which satisfied the Suspension Clause, also provided
what the Due Process Clause would require. Likewise,
assuming due process protections apply to Guantanamo
detainees, we reject Petitioner’s substantive due process
challenge based solely on the length of his detention. We do,
however, remand to the District Court Petitioner’s claim that
continuing to detain him if he no longer presents an ongoing
threat violates substantive due process. In doing so, we hold
that before the District Court considers the substantive due
process claim, it should consider the effect of the Periodic
Review Board’s Determination on mootness and the
President’s authority to continue to detain Mr. al-Hela under
the AUMF.
Although our dissenting colleagues disagree with the
reasoning set forth in this opinion, the Court largely agrees
upon the outcome. All members of the en banc Court agree
that we should affirm the District Court’s rejection of Mr. al-
Hela’s procedural due process claims. All members of the en
banc Court also agree that we should affirm the denial of Mr.
al-Hela’s claims that his detention violates substantive due
process because there is insufficient evidence that he was an
enemy combatant, or solely because of the lengthy duration of
the military conflict. However, while our dissenting colleagues
would dismiss Mr. al-Hela’s claim that his continued detention
violates substantive due process because he no longer poses a
significant threat to the United States, we remand this claim to
the District Court for further proceedings consistent with this
opinion.
So ordered.
PILLARD, Circuit Judge, with whom ROGERS and MILLETT,
Circuit Judges, join, concurring:
I join the majority opinion in full. The en banc court
assumes without deciding that the Due Process Clause applies
and holds, after careful review of the record, that the District
Court’s exacting review of Mr. al Hela’s habeas petition,
including strict limitation of ex parte evidence, provided him
what the Due Process Clause would afford. I write separately
to underscore that established precedent provides ample
footing for the court’s predicate assumption that the Due
Process Clause’s protections could apply to detainees at
Guantanamo, including Mr. al Hela. Because the United States
has total and indefinite control amounting to de facto
sovereignty over Guantanamo Bay, non-U.S. citizens detained
there may have some constitutional protections beyond those
provided by the Suspension Clause. The courts, not the
Executive Branch, decide the reach of constitutional rights.
And no established precedent bars the court from assuming the
applicability of the Due Process Clause so as to decide this case
in the narrowest way.
* * *
The dissents insist that, under “settled law,” “aliens
outside the territorial United States do not possess
constitutional rights.” Rao Op. 1-2; see also Randolph Op. 3,
6. They advert to a binary, sovereignty-based approach under
which the Constitution protects non-U.S. citizens only when
they are within, and not beyond, the sovereign territory of the
United States. That analysis ignores a third category that the
Supreme Court crystallized and held decisive in Boumediene v.
Bush, 553 U.S. 723 (2008). Referring to Guantanamo Bay, the
Court in Boumediene explained that, where the United States
“maintains de facto sovereignty over [a] territory” due to “its
complete jurisdiction and total control” over it, the
Constitution, as applied to foreign citizens, does not
2
“necessarily stop[] where de jure sovereignty ends.” Id. at 755;
see id. at 764-65, 770-71.
Today the en banc court permissibly reads Boumediene to
leave open the possibility that non-U.S. citizens whom the U.S.
government detains at Guantanamo are entitled to due process.
Maj. Op. 12-18. As the Supreme Court recounted in
Boumediene, “[t]he United States has maintained complete and
uninterrupted control of [Guantanamo] [B]ay for over 100
years,” dating back to the end of the Spanish-American War in
1898. 553 U.S. at 764. Although the 1903 Lease Agreement
between the United States and Cuba “recognized . . . that Cuba
retained ‘ultimate sovereignty’ over Guantanamo, the United
States continued to maintain the same plenary control it had
enjoyed since 1898.” Id. at 765. Because Guantanamo remains
under the “absolute” and “indefinite” control of the United
States, the Court explained, “[i]n every practical sense
Guantanamo is not abroad; it is within the constant jurisdiction
of the United States.” Id. at 768-69. Within such “de facto”
U.S. territory, id. at 755, the Court recognized that it is possible
for “noncitizens detained by our Government in territory over
which another country maintains de jure sovereignty [to]
have . . . rights under our Constitution,” id. at 770; see Agency
for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082,
2086 (2020) (reaffirming that “under some circumstances,
foreign citizens in the U.S. Territories—or in ‘a territory’ under
the ‘indefinite’ and ‘complete and total control’ and ‘within the
constant jurisdiction’ of the United States—may possess
certain constitutional rights” (quoting Boumediene, 553 U.S. at
755-71)).
The Boumediene Court relied on “separation-of-powers”
principles in recognizing that at least some constitutional
protection applies to Guantanamo detainees:
3
[T]he Government’s view is that the Constitution
ha[s] no effect [at Guantanamo], at least as to
noncitizens, because the United States disclaimed
sovereignty in the formal sense of the term. The
necessary implication of the argument is that by
surrendering formal sovereignty over any
unincorporated territory to a third party, while at the
same time entering into a lease that grants total
control over the territory back to the United States, it
would be possible for the political branches to
govern without legal constraint.
Our basic charter cannot be contracted away like
this. The Constitution grants Congress and the
President the power to acquire, dispose of, and
govern territory, not the power to decide when and
where its terms apply.
553 U.S. at 764-65. To conclude otherwise “would permit a
striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President, not
this Court, say ‘what the law is.’” Id. at 765 (quoting Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The Supreme
Court in Boumediene declined to read “[o]ur basic charter” as
empowering the Executive to “switch the Constitution on or off
at will” by contractually disclaiming formal sovereignty over a
territory that is functionally “within the constant jurisdiction of
the United States.” Id. at 765, 769. Boumediene therefore
rejected the categorical position the dissents here urge—that,
apart from the acknowledged applicability of the Suspension
Clause at Guantanamo, the Constitution cannot protect non-
U.S. citizens outside the territorial United States. See id. at
764-65, 770-71.
4
The Court in Boumediene did not confine its language or
logic to the Suspension Clause, contra Rao Op. 9-14, and its
approach supports our assumption that the Due Process Clause
could apply to a Guantanamo detainee’s habeas petition. For
starters, the one location that undoubtedly qualifies as a de
facto U.S. territory is Guantanamo, where the United States
continues to hold Mr. al Hela. See Boumediene, 553 U.S. at
755, 764-65, 770-71. And Boumediene speaks not of habeas
corpus exclusively, but of constitutional rights more generally:
The Court rejected “[t]he Government’s formal sovereignty-
based test” for “determining the geographic reach of the
Constitution,” as well as “of habeas corpus” in particular. Id.
at 764 (emphasis added). It denied that “the Constitution
necessarily stops where de jure sovereignty ends.” Id. at 755(emphasis added). And it rebuffed “the Government’s view . . .
that the Constitution had no effect [at Guantanamo], at least as
to noncitizens, because the United States disclaimed
sovereignty in the formal sense of the term.” Id. at 765(emphasis added). The en banc court’s decision to assume
without deciding that the Due Process Clause applies at
Guantanamo thus rests on firm ground.
In addition, members of this court have recognized that
Boumediene’s analytic framework is not limited to the
Suspension Clause. Indeed, “[o]f the seven judges on the en
banc Court” in Al Bahlul v. United States, five agreed that “in
light of Boumediene v. Bush . . . the Ex Post Facto Clause
applies at Guantanamo.” Al Bahlul v. United States, 767 F.3d
1, 63 (D.C. Cir. 2014) (Kavanaugh, J., concurring in the
judgment in part and dissenting in part); see id. at 18 n.9
(opinion of Henderson, J., joined by Garland, C.J., and Tatel
and Griffith, JJ.) (stating the views of then-Chief Judge
Garland and Judges Tatel and Griffith on this point); id. at 49-
5
50 (Rogers, J., concurring in the judgment in part and
dissenting). As then-Judge Kavanaugh put it:
[T]he Boumediene analysis leads inexorably to the
conclusion that the ex post facto right applies at
Guantanamo. It would be no more impracticable or
anomalous to apply the Article I, Section 9 ex post
facto right at Guantanamo than it is to apply the
Article I, Section 9 habeas corpus right at
Guantanamo.
Id. at 65 n.3. Judge Rogers similarly reasoned that
Boumediene’s “analysis of the extraterritorial reach of the
Suspension Clause applies to the Ex Post Facto Clause because
the detainees’ status and location at Guantanamo Bay are the
same, and the government has pointed to no distinguishing
‘practical obstacles’ to its application.” Id. at 49 (Rogers, J.,
concurring in the judgment in part and dissenting). Three
additional judges—then-Chief Judge Garland and Judges Tatel
and Griffith—noted that if they were to decide the ex post facto
issue de novo (i.e., if the Government had not conceded the
point), they would conclude that the Clause applies “for the
reasons stated” by Judges Rogers and Kavanaugh in the above-
quoted sections of their respective opinions. Id. at 18 n.9.
It is fair to assume, as today’s en banc court does, that the
same reasoning could apply here. It would be no more
impracticable to apply the Due Process Clause than the
Suspension or Ex Post Facto Clause in this context. If
anything, the due process analysis is particularly well
calibrated to take account of practical obstacles, given that it
weighs any “burdens the Government would face in providing
greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)
(plurality opinion) (citing Mathews v. Eldridge, 424 U.S. 319,
335 (1976)). Nor would application of the Due Process Clause
6
be anomalous, given the Court’s application of the Suspension
Clause in this setting. The Suspension Clause plays a similar
role to due process in “preserv[ing] the Constitution’s
separation-of-powers structure” by preventing arbitrary
exercise of Executive power. Al Bahlul, 767 F.3d at 49(Rogers, J., concurring in the judgment in part and dissenting).
And, as Judge Wilkins’s opinion for the majority points out,
the “meaningful opportunity” to challenge the legality of
detention guaranteed by the Suspension Clause, Boumediene,
553 U.S. at 779, provides protection that is congruent in this
context to the “opportunity to be heard ‘at a meaningful time
and in a meaningful manner’” afforded by the Due Process
Clause, Mathews, 424 U.S. at 333 (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)); see Maj. Op. 22-25.
Indeed, it is hard to imagine how any procedural protections
that Mathews affords to a detained enemy combatant’s habeas
petition, see Hamdi, 542 U.S. at 529-39 (plurality opinion),
would not also be demanded by the Suspension Clause’s
requirement of a “meaningful opportunity” to contest the basis
for detention and “meaningful review” by the courts of
detention decisions, Boumediene, 553 U.S. at 779, 783.
Johnson v. Eisentrager, 339 U.S. 763 (1950), does not
compel a contrary conclusion. Contra Rao Op. 1-9; Randolph
Op. 3, 6. As Boumediene made clear, Eisentrager should not
be read to foreclose constitutional claims of non-U.S. citizens
outside U.S. sovereign territory under a “bright-line test” based
solely on de jure territorial sovereignty. Boumediene, 553 U.S.
at 763. The government had argued for a bright-line de jure
sovereignty test in Eisentrager and did so again in Boumediene.
See Boumediene, 553 U.S. at 763 (citing Brief for Petitioners
at 74-75, Eisentrager, 339 U.S. 763 (O.T. 1949, No. 306), 1950
WL 78514). But in a broad-ranging discussion of its past
decisions regarding “the Constitution’s extraterritorial
application,” id. at 755; see id. at 755-64, the Boumediene
7
Court rejected the government’s “formalistic” test and its
reading of precedent: “Nothing in Eisentrager says that de jure
sovereignty is or has ever been the only relevant consideration
in determining the geographic reach of the Constitution . . . .”
Id. at 764. Instead, the Court drew on its own more nuanced
reading of Eisentrager, as well as the Insular Cases and Reid v.
Covert, 354 U.S. 1 (1957), to identify “a common thread
uniting” its precedents on the Constitution’s applicability
outside the sovereign territory of the United States—namely
“the idea that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.” Boumediene,
553 U.S. at 764; see id. at 766-71.
In accordance with that precedent, Boumediene instructs
that a “formal sovereignty-based” approach is inadequate for
Guantanamo, id. at 764-65, yet today’s dissenters contend that,
because “Guantanamo Bay is decidedly outside the territorial
United States,” foreign citizens detained there “cannot benefit
from the protections of the Due Process Clause,” Rao Op. 1.
That reasoning runs headlong into Boumediene’s explicit
rejection of the view that the Constitution, as applied to non-
U.S. citizens, “necessarily stops where de jure sovereignty
ends,” at least where the United States, “by virtue of its
complete jurisdiction and total control over [a territory],
maintains de facto sovereignty over th[at] territory.”
Boumediene, 553 U.S. at 755; see id. at 770-71; see also All.
for Open Soc’y Int’l, 140 S. Ct. at 2086 (citing Boumediene,
553 U.S. at 755-71). In short, the dissenters take a route that
the Supreme Court has plainly marked a dead end, all while
deeming irrelevant factors and concerns that the Court has
identified as germane to deciding Mr. al Hela’s constitutional
claims.
8
* * *
It suffices in this case to assume without deciding that the
Due Process Clause applies. Because a premise of the en banc
court’s assumption is that no binding precedent forecloses
application of the Due Process Clause at Guantanamo, I write
to highlight why we fairly deem open an issue that some of our
colleagues would treat as closed. I join Judge Wilkins’s
majority opinion in full.
RAO, Circuit Judge, with whom WALKER, Circuit Judge,
joins, concurring in the judgment in part and dissenting in part:
More than twenty years after the first enemy alien was
detained at the Guantanamo Bay Naval Station in Cuba, this
court discovers the Due Process Clause might protect these
alien detainees. On this assumption, the court applies the Due
Process Clause outside the sovereign territory of the United
States, pioneering a jurisprudence squarely at odds with the
Constitution.
The Due Process Clause simply does not extend to aliens
outside the territorial United States, as the Supreme Court
emphatically recognized in Johnson v. Eisentrager, 339 U.S.
763, 781–85 (1950). The Court and this circuit have relied on
Eisentrager in the ensuing years to reaffirm that aliens outside
the territorial United States do not possess constitutional rights.
Guantanamo Bay is decidedly outside the territorial United
States. Boumediene v. Bush, 553 U.S. 723, 753–54 (2008). As
an alien detained there, Abdulsalam Ali Abdulrahman al-Hela
cannot benefit from the protections of the Due Process Clause.
To avoid this straightforward conclusion, the court takes a
convoluted path. At the outset, it boldly asserts that it is an open
question whether the Due Process Clause applies to
Guantanamo detainees. Rather than decide that question, the
court merely assumes the Clause applies. With that
unprecedented assumption in hand, it concludes for the first
time in our history that the procedural protections of the
Suspension Clause and the Due Process Clause are equivalent.
But apparently not identical, because the court imports the
Mathews v. Eldridge balancing test to assess each of al-Hela’s
procedural due process claims, manufacturing new and
significant procedural due process law along the way. As to al-
Hela’s “substantive due process” claims, the court effectively
holds, not assumes, that al-Hela possesses such rights by
2
remanding one of his claims to the district court. Finally,
almost as an aside, the court upends circuit precedent by stating
the international law of war may limit the reach of the
Authorization for the Use of Military Force (“AUMF”), the
statute that provides the basis for the detention of al-Hela and
other enemy aliens after the terrorist attacks of September 11.
Despite this rampage through our settled law, al-Hela still
loses on his due process claims, the same result that would have
followed from applying Eisentrager. For Guantanamo
detainees who have argued for greater constitutional
protections, this court’s cramped application of due process is
at best a pyrrhic victory. Nevertheless, the loss to the rule of
law is substantial. The court’s novel and unfounded approach
will upset ongoing military and district court proceedings and
invariably require yet more litigation, further entangling this
court in sensitive matters of national security and foreign
affairs.
I.
Under settled Supreme Court precedent, al-Hela’s due
process claims are readily rejected. To reach a contrary
conclusion, the majority asserts a tabula rasa—namely that this
Court has never resolved the question of whether “the Due
Process Clause extends to Guantanamo detainees.” Maj. Op. 5.
The majority simply assumes the Due Process Clause applies
to enemy aliens held at Guantanamo Bay, but cannot
distinguish the numerous Supreme Court precedents to the
contrary.
This Part first discusses the unbroken line of decisions of
our highest court, as well as this circuit, holding that the Due
Process Clause does not apply to aliens outside the territorial
United States. Second, the Supreme Court in Boumediene
allowed the writ of habeas corpus to run to Guantanamo Bay
3
but did not explicitly or implicitly abrogate the long-settled
principle that constitutional protections do not extend to aliens
outside our sovereign territory. Finally, because this
constitutional principle is so fundamental, previous decisions
have not examined its origins. The text and structure of the
Constitution, as well as its original meaning, make clear that
the constitutional upheaval wrought by the majority is entirely
without support. The Due Process Clause does not apply
outside the territorial United States, and therefore alien
detainees at Guantanamo Bay do not enjoy its protections.
A.
As a lower court, it is a bedrock principle of our judicial
system that we are bound to follow Supreme Court precedent.
The majority’s failure to engage with these precedents is
irregular to say the least, all the more so because the Court’s
decisions in this area have been clear and unequivocal.
In Johnson v. Eisentrager, the Supreme Court “rejected
the claim that aliens are entitled to Fifth Amendment rights
outside the sovereign territory of the United States.” United
States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing
Eisentrager, 339 U.S. at 770, 784). Writing for the Court,
Justice Jackson explained that:
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. None of the learned commentators
on our Constitution has even hinted at it. The
4
practice of every modern government is
opposed to it.
Eisentrager, 339 U.S. at 784–85 (cleaned up).
In overruling a decision of this circuit, the Supreme Court
rejected the theory that because the Fifth Amendment applies
to “any person,” it must apply to aliens detained outside the
United States who take up arms against it. Id. at 781–82
(overruling Eisentrager v. Forrestal, 174 F.2d 961 (D.C. Cir.
1949)). It made little sense to read the phrase “any person” in
the Fifth Amendment to include enemy aliens given that
American soldiers are subject to military discipline and
“thereby stripped of their Fifth Amendment rights.” Id. at 783;
see also U.S. CONST. amend. V (exempting “cases arising in
the land or naval forces, or in the Militia” from certain
procedural protections). “It would be a paradox indeed,” the
Court explained, “if what the Amendment denied to Americans
it guaranteed to enemies.” Eisentrager, 339 U.S. at 783. The
U.S. Constitution, consistent with the longstanding practice of
constitutional governments, simply did not apply to aliens
outside the territorial United States.
The intervening decades have only reinforced the central
holding of Eisentrager that the Constitution does not extend
extraterritorially to aliens. For example, in Verdugo-Urquidez
the Court described Eisentrager’s conclusion as “emphatic”
and held the Fourth Amendment does not apply to “property
that is owned by a nonresident alien and located in a foreign
country.” 494 U.S. at 261, 269. The Court reasoned that the
Fifth Amendment did not extend extraterritorially, even though
it spoke “in the relatively universal term of ‘person,’” and
therefore the inappropriateness of extraterritorial application
“would seem even more true with respect to the Fourth
Amendment, which applies only to ‘the people.’” Id. at 269.
5
In Zadvydas v. Davis, the Court again recognized, “[i]t 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. 678, 693
(2001) (citing Verdugo-Urquidez, 494 U.S. at 269;
Eisentrager, 339 U.S. at 784). The Court held that indefinite
detention of an alien within the United States would “raise a
serious constitutional problem” under the Due Process Clause
and emphasized it “made all the difference” that Zadvydas had
already entered the United States. Id. at 690, 693. The case was
therefore unlike Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953), in which the Court held that an alien who
was refused admission could be indefinitely detained without
constitutional concern. Zadvydas, 533 U.S. at 693 (citing
Eisentrager, 339 U.S. at 784). Recognizing the continuing and
“well established” principles articulated in Eisentrager and
subsequent cases, the Court emphasized the “critical
distinction” between situations in which an alien has legally
entered the United States and those in which the alien remains
effectively outside our borders. Id. at 693–94. The Court’s
holding was narrow—only when an alien “has effected an entry
into the United States” is the Due Process Clause even
implicated. 1 Id. at 693.
1
Four justices did not agree even with this narrow holding and would
have upheld the plain meaning of the challenged statute, which
allowed for indefinite detention of aliens who were ordered removed
from the United States. See Zadvydas, 533 U.S. at 702, 705 (Scalia,
J., dissenting) (identifying “the Attorney General’s clear statutory
authority to detain criminal aliens with no specified time limit” and
finding “no constitutional impediment to the discretion Congress
gave to the Attorney General”); id. at 705 (Kennedy, J., dissenting)
(arguing the Court had “interpret[ed] a statute in obvious disregard
of congressional intent”).
6
In recent years, the Supreme Court has reaffirmed the
broadest understanding of Eisentrager. In Agency for
International Development v. Alliance for Open Society
International, Inc. (“AID”), the Supreme Court held “foreign
organizations operating abroad … possess no rights under the
First Amendment.” 140 S. Ct. 2082, 2087 (2020). To reach this
conclusion, the Court began with the fundamental principle:
“First, it is long settled as a matter of American constitutional
law that foreign citizens outside U. S. territory do not possess
rights under the U. S. Constitution.” Id. at 2086. For this
proposition the Court cited, not just Eisentrager, but also
Boumediene, 553 U.S. at 770–71; Hamdi v. Rumsfeld, 542 U.S.
507, 558–59 (2004) (Scalia, J., dissenting); Verdugo-Urquidez,
494 U.S. at 265–75; United States ex rel. Turner v. Williams,
194 U.S. 279, 292 (1904); and the Preamble to the United
States Constitution. AID, 140 S. Ct. at 2086. Similarly, in
Department of Homeland Security v. Thuraissigiam, the Court
stated that allowing an alien who had not been lawfully
admitted to the United States to invoke the Due Process Clause
would be “contrary to more than a century of precedent.” 140
S. Ct. 1959, 1982 (2020).
This circuit has consistently applied Eisentrager and
Verdugo-Urquidez to foreclose the application of
constitutional provisions to aliens abroad. We have held that a
nonresident alien who was allegedly tortured by officials of the
Central Intelligence Agency in Guatemala lacked a substantive
due process claim under the Fifth Amendment. Harbury v.
Deutch, 233 F.3d 596, 603–04 (D.C. Cir. 2000), rev’d on other
grounds sub nom. Christopher v. Harbury, 536 U.S. 403(2002). And we have maintained that foreign entities without
presence in the United States could not assert a procedural due
process challenge to their designation as foreign terrorist
organizations. People’s Mojahedin Org. of Iran v. U.S. Dep’t
of State, 182 F.3d 17, 22 (D.C Cir. 1999); see also Pauling v.
7
McElroy, 278 F.2d 252, 254 n.3 (D.C Cir. 1960) (per curiam)
(stating that nonresident aliens could not assert constitutional
claims).
Until very recently, we have also faithfully applied the
Eisentrager line of cases and held explicitly that the Due
Process Clause does not extend to aliens detained at
Guantanamo Bay. See Al Hela v. Trump, 972 F.3d 120, 138–
43, 147–50 (D.C. Cir. 2020) (discussing cases). For example,
we recognized just after Boumediene that “[d]ecisions of the
Supreme Court and of this court … hold that the due process
clause does not apply to aliens without property or presence in
the sovereign territory of the United States.” Kiyemba v.
Obama (“Kiyemba I”), 555 F.3d 1022, 1026 & n.9 (D.C. Cir.
2009), vacated and remanded, 559 U.S. 131, reinstated by 605
F.3d 1046 (D.C. Cir. 2010) (“Kiyemba III”) (per curiam).
Similarly, we have rejected the “premise[]” that an alien “ha[s]
a constitutional right to due process” at Guantanamo Bay. Al-
Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011);
see also Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509, 518
n.4 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (Since
Boumediene, “[t]his Court has … stated that the detainees
possess no constitutional due process rights.”). And we have
explicitly stated that Boumediene did not overrule Eisentrager.
Rasul v. Myers, 563 F.3d 527, 528–29 (D.C. Cir. 2009) (per
curiam). After Boumediene, this court and the district court
have articulated the contours of the procedural rights afforded
to Guantanamo detainees under the Suspension Clause, but
have explicitly declined to extend constitutional due process
protections.
The majority’s only response to this unbroken line of
caselaw is to cite a single line from AID; to rely on a couple of
recent circuit cases that ignored settled Supreme Court and
circuit precedent; and to lean on the government’s political
8
change of heart. But none of these arguments support the
majority’s approach.
To begin with, the majority asserts Eisentrager no longer
is understood to bar the extraterritorial application of the Due
Process Clause. In support of this proposition, the majority
cites only a single sentence from AID that, “under some
circumstances, foreign citizens” in Guantanamo Bay “may
possess certain constitutional rights.” 140 S. Ct. at 2086; see
Maj. Op. 15. In AID, the Court simply cites Boumediene and
recognizes the narrow and specific holding that the habeas writ
may run to a place over which the United States maintains
“complete and total control.” 140 S. Ct. at 2086 (quoting
Boumediene, 553 U.S. at 771). AID in no way abrogated
Eisentrager or its holding that the Due Process Clause does not
apply outside the territorial boundaries of the United States. 2
Overlooking almost two decades of Guantanamo
precedents, the majority relies on only two recent circuit cases
that merely assert the application of the Due Process Clause to
Guantanamo detainees is an “open question.” See Ali v. Trump,
959 F.3d 364, 368–69 (D.C. Cir. 2020); Qassim v. Trump, 927
F.3d 522, 528–30 (D.C. Cir. 2019); Maj. Op. 16. But as was
recognized at the time, both of these cases ignored the Supreme
2
The majority and the concurrence similarly err in relying on then-
Judge Kavanaugh’s separate opinion in Al Bahlul v. United States,
which suggested the Ex Post Facto Clause might apply at
Guantanamo. 767 F.3d 1, 65 & n.3 (D.C. Cir. 2014) (en banc)
(Kavanaugh, J., concurring in the judgment in part and dissenting in
part); see Maj. Op. 15–16; Concurring Op. 4–5. These statements
were dicta in a separate opinion, but in any event, the reasoning
turned on the fact that both the Suspension Clause and the Ex Post
Facto Clause are part of Article I, section 9. See Al Bahlul, 767 F.3d
at 65 n.3 (Kavanaugh, J.). To state the obvious, such reasoning does
not apply to the Due Process Clause of the Fifth Amendment.
9
Court’s settled law and departed from circuit precedent. See
Ali, 959 F.3d at 373–80 (Randolph, J., concurring in the
judgment); Qassim v. Trump, 938 F.3d 375, 376–79 (D.C. Cir.
2019) (Henderson, J., dissenting from denial of rehearing en
banc). Ignoring governing precedent to declare a question open
does not make it so.
More puzzling still is the majority’s suggestion that
Eisentrager’s holding has “apparently eluded the government.”
See Maj. Op. 16. In its panel brief, the government followed
Eisentrager and maintained that, “[b]ecause al-Hela is
indisputably an alien with no presence in the United States, the
Due Process Clause does not extend to him with respect to his
detention at Guantanamo.” Breaking with the government’s
longstanding position in Guantanamo litigation, counsel
candidly stated at the en banc argument that the government’s
change in position reflected the intervening “change in
administration.” A new administration may change the
government’s litigating position, but cannot change the
meaning of the Constitution.
In short, the issue of whether the Due Process Clause
applies at Guantanamo Bay is not an open one.
B.
Ignoring these bedrock principles of constitutional law, the
majority attempts to rely on Boumediene v. Bush. But today’s
hypothetical constitutional upheaval finds no support in that
decision either.
Boumediene held that Guantanamo detainees may petition
for a writ of habeas corpus to challenge the lawfulness of their
detentions. 553 U.S. at 732. Recognizing that Guantanamo was
outside the territorial United States, the Court nonetheless
concluded that the writ could run to a place over which the
10
government maintained de facto sovereignty. Boumediene was
momentous, but its holding and reasoning were carefully
cabined to the reach of the Suspension Clause. Boumediene
leaves in place the Eisentrager line of cases holding that aliens
outside the territorial United States do not enjoy substantive
constitutional rights.
First, the Boumediene Court repeatedly emphasized the
unique procedural protection of the habeas writ, “one of the
few safeguards of liberty specified in a Constitution that, at the
outset, had no Bill of Rights.” Id. at 739. The Great Writ served
as a “vital instrument” to secure “freedom from unlawful
restraint.” Id. These considerations particular to the habeas
writ—the “broad historical narrative of the writ and its
function”—were “central” to the Court’s analysis. Id. at 746.
They undergirded the Court’s conclusion that, because the
United States “maintains de facto sovereignty” over
Guantanamo, the Suspension Clause guarantees detainees there
a “meaningful opportunity” to challenge the basis of their
detention. Id. at 755, 779. But see id. at 843–48 (Scalia, J.,
dissenting) (contending the history of the common law habeas
writ demonstrates that it was not available for aliens held
outside sovereign territory).
Importantly, the conclusion that the writ of habeas corpus
could run to a location like Guantanamo Bay, over which the
United States maintained de facto sovereignty, turned on the
nature of the writ as a procedural protection. Nowhere did the
Court suggest that its de facto sovereignty test for the habeas
writ would also extend substantive constitutional rights to
aliens beyond the territorial United States.
Second, Boumediene explicitly focused only on Part II of
Eisentrager, which concerned the availability of a habeas writ
for a detainee in Landsberg Prison in Germany. In fact, the
11
Court carefully cabined its understanding of de facto
sovereignty to the availability of habeas corpus, explaining that
“practical considerations [] were integral to Part II” of
Eisentrager. Id. at 763 (majority opinion); see also id.(explaining that Part II was substantially about “practical
barriers to the running of the writ” and the “objective degree of
control the United States asserted over” the prison). When
setting forth factors “relevant in determining the reach of the
Suspension Clause,” the Court again emphasized Part II of
Eisentrager. Id. at 766. And the opinion concluded, “[i]t bears
repeating that our opinion does not address the content of the
law that governs petitioners’ detention.” Id. at 798 (emphasis
added); see also id. at 787 (“The extent of the showing required
of the Government in these cases is a matter to be
determined.”). The Court applied its de facto sovereignty test
for assessing the reach of the writ of habeas corpus but
repeatedly emphasized that its holding and reasoning applied
only to the reach of the writ. 3
Furthermore, the Boumediene Court left untouched Part III
of Eisentrager, in which the Court squarely held that enemy
aliens detained outside United States territory are beyond the
ambit of the Due Process Clause. Eisentrager, 339 U.S. at 781–
85. The Court has never questioned, let alone overruled, that
part of Eisentrager. Unlike Part II, on which the Boumediene
majority relied, Part III of Eisentrager makes no mention of
practical considerations against the application of due process
3
Moreover, four dissenting justices categorically rejected the de
facto sovereignty test for determining the reach of the Constitution.
See id. at 849 (Scalia, J., dissenting) (“Today the Court warps our
Constitution in a way that goes beyond the narrow issue of the reach
of the Suspension Clause, invoking judicially brainstormed
separation-of-powers principles to establish a manipulable
‘functional’ test for the extraterritorial reach of habeas corpus.”).
12
and other constitutional rights to aliens abroad. Rather, the
Court recognized the categorical rule that “the Constitution
does not confer a right of personal security or an immunity
from military trial and punishment upon an alien enemy
engaged in the hostile service of a government at war with the
United States.” Id. at 785.
Finally, on the concurrence’s understanding of
Boumediene, it must now be an open question whether aliens
outside the territorial United States enjoy all constitutional
rights. The concurrence emphasizes the most general
statements in Boumediene. Concurring Op. 2–4. But that fails
to answer the relevant question, namely whether Boumediene’s
holding extends beyond the Suspension Clause to the Due
Process Clause. Neither the majority nor the concurrence
attempt the detailed historical approach of Boumediene to
determine whether the Due Process Clause should also follow
de facto sovereignty. Nor could they without running headlong
into Eisentrager. Instead, they merely assume the running of
the writ to Guantanamo means the rest of the Constitution may
follow. If the application of the Due Process Clause at
Guantanamo is an open question, so apparently is the
application of the First, Fourth, Fifth, and Sixth Amendments. 4
4
In overturning this court’s decision in Eisentrager, the Supreme
Court emphasized the absurdity of allowing extraterritorial
application of the Due Process Clause, because it “would mean that
during military occupation irreconcilable enemy elements, guerrilla
fighters, and ‘were-wolves’ could require the American Judiciary to
assure them freedoms of speech, press, and assembly as in the 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.”
Eisentrager, 339 U.S. at 784.
13
That should ensure full employment for detainee counsel in the
years to come.
Formal territorial sovereignty has always governed the
reach of our Constitution, with the sole exception recognized
in Boumediene for the unique procedural protection of the writ
of habeas corpus. As this court explained in Rasul,
“Boumediene disclaimed any intention to disturb existing law
governing the extraterritorial reach” of substantive
constitutional rights and therefore left in place the blackletter
rule that the Constitution does not apply to aliens outside the
United States. 563 F.3d at 529; see also Al Hela, 972 F.3d at
140–41. If Boumediene left any doubt on this front, in the years
since that case was decided the Supreme Court has reaffirmed
both Eisentrager’s specific holding as well as the more general
principle that the Constitution does not confer any rights on
aliens outside the territorial United States. AID, 140 S. Ct. at
2086. The majority simply fails to explain how its decision may
be squared with Eisentrager and the unbroken line of Supreme
Court and circuit precedent faithfully applying it. Eisentrager’s
holding that the Due Process Clause does not apply to aliens
outside the territory of the United States remains good law, and
we are bound by that holding.
Even on the majority’s view that Boumediene silently
invited a constitutional sea change, that interpretation does not
permit this court to ignore Eisentrager. We are bound by that
decision because when the Court’s precedent “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 [the
Supreme] Court the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989).
14
The majority claims it is an open question whether aliens
detained at Guantanamo may benefit from the protections of
the Due Process Clause. But Boumediene did not leave the
question open; it left the Court’s previous answer in place.
C.
When Eisentrager was decided in 1950, it was not
necessary to provide a lengthy justification for the conclusion
that the Constitution had no application to aliens outside of
sovereign territory because the principle was so well
established and fundamental. “Such extraterritorial application
of organic law would have been so significant an innovation in
the practice of governments” as to be wild and outlandish.
Eisentrager, 339 U.S. at 784. The majority’s revisionist
assumption that the Due Process Clause may apply to aliens
outside the territorial United States suggests this fundamental
legal principle has been lost or obscured. I therefore explain
why the majority’s framework is at odds with the text,
structure, and original meaning of the Constitution. 5
5
I agree with Judge Randolph that after Boumediene al-Hela is
entitled only to the “Privilege of the Writ of Habeas Corpus,” as
guaranteed by the Suspension Clause. U.S. CONST. art. I, § 9, cl. 2.
See Randolph Op. 5, 9–11. In 28 U.S.C. § 2241(e)(1), Congress
stripped the federal courts of jurisdiction to review habeas petitions
by detainees such as al-Hela. Boumediene held section 2241(e)(1)
unconstitutional only to the extent that the provision violated the
Suspension Clause. Section 2241(e)(1) therefore still operates to
strip federal courts of jurisdiction to conduct any habeas review not
guaranteed by that Clause. While we have jurisdiction to review al-
Hela’s petition under 28 U.S.C. § 2241(a), that jurisdiction now
extends only to those claims encompassed by the habeas writ as
preserved in the Suspension Clause.
15
The Constitution was established by “We the People of the
United States.” U.S. CONST. pmbl. As this language conveys,
the Constitution “was ordained by the people, and, when duly
ratified, it became the Constitution of the people of the United
States.” Hawke v. Smith, 253 U.S. 221, 226 (1920). The
American people sought “to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity.” U.S.
CONST. pmbl. The Constitution also establishes what counts as
“the supreme Law of the Land.” U.S. CONST. art. VI. By its
plain terms, the Constitution applies to the people of the United
States and to those within its territorial borders. See United
States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936)
(“Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our
own citizens.”); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)
(“These provisions are universal in their application, to all
persons within the territorial jurisdiction.”).
The majority makes no effort to demonstrate how the due
process claims brought by al-Hela are preserved by the Suspension
Clause. Judge Randolph suggests the common law writ at the time
of the Founding did not permit review of claims like the ones at issue
in this case. While this may be correct, I take it as a difficult question
unnecessary to resolve here, particularly in light of the Supreme
Court’s unwillingness to define the boundaries of the writ’s
constitutional protection. Thuraissigiam, 140 S. Ct. at 1969 & n.12
(considering the writ as it existed in 1789, but declining to address
its scope and concluding only that “the writ has never encompassed
respondent’s claims” because he requested relief for the purpose of
entering the United States). As the majority rests solely on the
assumption that the Due Process Clause applies at Guantanamo, I
explain why that Clause does not extend beyond our territorial
borders.
16
At the time of the Founding, law was “limited to persons
and things within the territory over which a government
exercised sovereignty.” J. Andrew Kent, A Textual and
Historical Case Against a Global Constitution, 95 GEO. L.J.
463, 486 (2007). See generally id. at 485–505. At the root of
this principle was the understanding that protection and
obligation were reciprocal—those who were subject to the
sovereign’s authority and obeyed his laws in turn received the
sovereign’s protection. See generally Philip Hamburger,
Beyond Protection, 109 COLUM. L. REV 1823 (2009). As Sir
Edward Coke put it, protection and obligation were a “duplex
et reciprocum ligamen,” a dual and reciprocal bond. Calvin’s
Case (1608) 77 Eng. Rep. 377, 382, 7 Co. Rep. 1 a, 5 a; see
also id. at 382, 7 Co. Rep. at 4 b (stating that, “as the subject
oweth to the King his true and faithful ligeance and obedience,
so the Sovereign is to govern and protect his subjects”). In
Blackstone’s phrasing, “[a]llegiance is the tie, or ligamen,
which binds the subject to the king, in return for that protection
which the king affords the subject.” 1 WILLIAM BLACKSTONE,
COMMENTARIES *354; see also Hamburger, 109 COLUM. L.
REV. at 1838–40 (collecting authorities). This fundamental
principle was also explicitly incorporated in multiple state
constitutions. See, e.g., N.C. CONST. OF 1776 pmbl.
(“Allegiance and Protection are in their nature reciprocal, and
the one should of right be refused, when the other is
withdrawn.”); N.J. CONST. OF 1776 pmbl. (“Allegiance and
Protection are, in the Nature of Things, reciprocal Ties, each
equally depending upon the other, and liable to be dissolved by
the other’s being refused or withdrawn.”).
From this understanding of territorial sovereignty it
followed that the government’s legal protections could extend
to resident aliens of friendly nations but not to nonresident
aliens. In Blackstone’s words, “as the prince affords his
protection to an alien, only during his residence in this realm,
17
the allegiance of an alien is confined (in point of time) to the
duration of such his residence, and (in point of locality) to the
dominions of the British empire.” 1 WILLIAM BLACKSTONE,
COMMENTARIES *358. This understanding—that legal
protections were due to aliens only when they entered the realm
of the sovereign—was widespread. Coke expressed this view
in Calvin’s Case. See 77 Eng. Rep. at 383, 7 Co. Rep. at 5 b
(“[W]hen an alien that is in amity cometh into England,
because as long as he is within England, he is within the King’s
protection; therefore so long as he is here, he oweth unto the
King a local obedience or ligeance, for that the one (as it hath
been said) draweth the other.”). Emmerich de Vattel, “the
founding era’s foremost expert on the law of nations,”
Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1493
(2019), also maintained the sovereign had the power to admit
foreigners and those who entered did so “only upon this tacit
condition, that [they] be subject to the laws,” EMMERICH DE
VATTEL, THE LAW OF NATIONS 172 (G.G. & J. Robinson ed.
1797) (1758). Correspondingly, “as soon as [the sovereign]
admits them, he engages to protect them as his own subjects,
and to afford them perfect security, as far as depends on him.”
Id. at 173. John Locke similarly recognized the reciprocal
obligations between the government and resident aliens. See
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT § 122 (C.B.
Macpherson ed., Hackett Publishing Co., Inc. 1980) (1690)
(“[T]hus we see, that foreigners, … living all their lives under
another government, and enjoying the privileges and protection
of it … are bound, even in conscience, to submit to its
administration, as far forth as any denison.”).
The leading legal authorities of the eighteenth century
consistently expressed the same theory of obligation and
protection—friendly aliens within a nation’s territory must
submit to the laws of that nation and in turn would be protected
18
by its laws—but both the protection and obligation stopped at
the nation’s territorial borders.
American law early recognized this territorial view. In the
debates concerning the Alien and Sedition Acts, Democratic-
Republicans suggested that resident aliens should enjoy the
protection of American law—precisely because, by residing in
the country, they owed it their allegiance. James Madison
argued that “[a]liens are not more parties to the laws than they
are parties to the Constitution; yet it will not be disputed that,
as they owe, on one hand, a temporary obedience, they are
entitled, in return, to their protection and advantage.” 4
DEBATES ON THE FEDERAL CONSTITUTION 556 (Jonathan Elliot
ed., 2d ed. 1836); see also Gerald L. Neuman, Whose
Constitution?, 100 YALE L.J. 909, 934–38 (1991) (discussing
the theory of “municipal law” adopted by the Jeffersonians
over the course of the debate). No one advanced the position
that resident aliens would have been entitled to constitutional
rights absent the obedience they owed to the United States by
virtue of their physical presence. “[G]iven the poles of debate
in the 1790s—Federalists denying that any aliens had
constitutional rights; Republicans arguing that friendly aliens
resident in the United States had constitutional rights—it is
difficult to imagine that any thought that nonresident aliens
located abroad had constitutional rights, especially during
military conflicts.” Kent, 95 GEO. L.J. at 531.
The territorial understanding endured in the following
decades. As a Representative, John Marshall stated that “the
jurisdiction of a nation extends to the whole of its territory, and
to its own citizens in every part of the world.” 10 ANNALS OF
CONG. 597 (1800). As Chief Justice, Marshall described “full
and absolute territorial jurisdiction” as “being alike the
attribute of every sovereign, and being incapable of conferring
extra-territorial power.” The Schooner Exchange v. McFaddon,
19
11 U.S. (7 Cranch) 116, 137 (1812). Future Justice Henry
Baldwin similarly declared as a member of Congress that “out
of the territorial limits of the United States, … our laws or
Constitution have no operation, except as between us and our
own citizens.” 33 ANNALS OF CONG. 1042 (1819). In his
commentary on the conflict of laws, Justice Story stated “the
laws of one country” can “bind only its own subjects, and
others, who are within its jurisdictional limits; and the latter
only while they remain there.” JOSEPH STORY, COMMENTARIES
ON THE CONFLICT OF LAWS FOREIGN AND DOMESTIC § 7
(1834).
This territorial reasoning was subsequently recognized and
reaffirmed in an uncontested line of Supreme Court decisions
that span the length of the nineteenth and twentieth centuries.
See The Schooner Exchange, 11 U.S. (7 Cranch) at 137;
Pennoyer v. Neff, 95 U.S. 714, 722 (1878) (“[I]t is laid down
by jurists, as an elementary principle, that the laws of one State
have no operation outside of its territory, except so far as is
allowed by comity.”); In re Ross, 140 U.S. 453, 464 (1891)
(“By the Constitution a government is ordained and established
‘for the United States of America,’ and not for countries
outside of their limits,” and “[t]he Constitution can have no
operation in another country.”); United States v. Belmont, 301
U.S. 324, 332 (1937) (“[O]ur Constitution, laws and policies
have no extraterritorial operation, unless in respect of our own
citizens.”).
The Supreme Court later explicitly held that constitutional
rights were retained by American citizens even when outside
the territorial United States. See Reid v. Covert, 354 U.S. 1, 5–
6 (1957) (plurality opinion). This decision turned on the unique
nature of citizenship, a concept “as old as government.” Id. at
6; see also id. at 14 (“[H]ere the basis for governmental power
is American citizenship.”). This emphasis on citizenship was
20
nothing new: “Citizenship as a head of jurisdiction and a
ground of protection was old when Paul invoked it in his appeal
to Caesar.” Eisentrager, 339 U.S. at 769. By contrast, it was
beyond dispute that aliens outside the United States have no
constitutional rights.
The original meaning of the Constitution and subsequent
historical practice confirm that constitutional rights do not
extend to aliens without property or presence in the sovereign
territory of the United States.
***
The Due Process Clause does not apply to aliens detained
at the Guantanamo Bay Naval Station because it is located
outside the sovereign territory of the United States. That
territorial limitation controls under the Constitution and our
precedents. We have never applied a de facto sovereignty test
to determine the reach of substantive constitutional rights. See
Boumediene, 553 U.S. at 753–54; Kiyemba I, 555 F.3d at 1026
n.9. Moreover, the majority’s assumption that the Due Process
Clause applies at Guantanamo Bay cannot be squared with the
Constitution’s text, structure, and history.
As an alien detained abroad, al-Hela cannot claim the
protections of the Due Process Clause either with respect to his
detention or the procedures for reviewing his petition for a writ
of habeas corpus. After Boumediene, al-Hela’s habeas petition
must simply be reviewed in accordance with the Suspension
Clause and our cases applying that provision to detainees. As
the majority agrees, these standards were readily met in this
case.
21
II.
Instead of following this well-trod path, the majority
asserts a clear constitutional field. The government and the
district court are now informed it is an “open question” whether
the Due Process Clause applies to Guantanamo detainees. The
majority, however, does not decide that supposedly open
question. Instead it clings to the maxim that “courts must
choose the narrowest constitutional path to decision.” Maj. Op.
14 (quoting Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 896
F.3d 539, 544 (D.C. Cir. 2018)). Particularly for lower courts,
it is often preferable to avoid deciding a constitutional question
when a narrower ground of decision is available. This principle
respects the separation of powers because courts should refrain
from rendering unnecessary pronouncements of constitutional
law that may constrain the actions of the co-equal branches of
government.
The claim to restraint rings hollow, however, because in
the face of contrary precedent the majority assumes the Due
Process Clause applies at Guantanamo, and then proceeds to
decide numerous constitutional questions that are actually
open. The majority also effectively holds that substantive due
process applies to Guantanamo detainees by remanding one of
al-Hela’s claims. And finally, the majority casually suggests
the laws of war may limit the President’s detention authority
under the AUMF, a proposition flatly contradicted by our
caselaw. Ignoring established Supreme Court and circuit
precedent, the majority issues significant constitutional
holdings and blazes a wide and winding trail in the wrong
direction.
A.
Despite the claim to be following a “narrowe[r]
constitutional path,” the majority has in fact decided
22
consequential questions of constitutional law. It has taken the
“unappealing” approach of “crafting a hypothetical standard
for a hypothetical constitutional right.” Stop the Beach
Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702,
718 (2010) (plurality opinion). Consistent with the power of
Article III courts to decide cases and controversies, it would
have been “[b]etter simply to state and apply the law
forthrightly than to hold our view of the law in pectore, so that
we can inquire into matters beyond our charter, and probably
beyond our ken.” Nat’l Aeronautics & Space Admin. v. Nelson,
562 U.S. 134, 165 (2011) (Scalia, J., concurring in the
judgment). Certainly here it would have been more forthright
to decide the purportedly “open” question of whether the Due
Process Clause applies to an enemy alien outside the United
States. Instead, the majority assumes the Due Process Clause
applies and undertakes a painstaking review of what a
hypothetical due process right would require, creating
significant constitutional holdings along the way.
At the outset, the majority suggests the procedures
demanded by the Due Process Clause are identical to those
required by the Suspension Clause for habeas petitions brought
by Guantanamo detainees. Maj. Op. 22–25. This constitutional
holding is an innovation and a profoundly significant and broad
one. It does not rest on Boumediene, which explicitly
disclaimed this conclusion, 553 U.S. at 798, or on any other
Supreme Court or circuit decision. Embarking on uncharted
territory, the majority discovers that the judicial descriptions of
a detainee’s rights under the Suspension Clause are similar to
the descriptions, in entirely other domestic contexts, of the
rights guaranteed by the Due Process Clause. Maj. Op. 22; see
also Maj. Op. 38 (finding the procedures employed by the
district court that satisfy the Suspension Clause also
“coincidentally” satisfy the requirements of the Due Process
Clause).
23
Because stating for the first time that the protections of the
Suspension Clause and the Due Process Clause are equivalent
is not enough to dispose of this case, the majority must go
further, deciding each of al-Hela’s specific claims. Belying the
claim of judicial minimalism, the majority also forgives al-
Hela’s forfeiture of two claims in order to reach them. Maj. Op.
18–19. The caselaw in this area is scant, and so to decide al-
Hela’s procedural due process claims, the majority necessarily
must break new ground with each determination. The majority
holds:
1. Determining the legality of an enemy combatant’s
detention on a preponderance of the evidence standard
is consistent with procedural due process, and such
detentions are distinguishable from civil commitments.
Maj. Op. 31–34.
2. Applying a “rebuttable presumption of accuracy and
authenticity to any evidence the government presents,”
including the types of evidence unique to showing the
legality of detaining an enemy alien, is consistent with
due process. Maj. Op. 34–36 (cleaned up).
3. Admitting hearsay in proceedings to judge the legality
of an enemy alien’s detention is consistent with due
process. Maj. Op. 36–39.
4. Admitting ex parte evidence can be consistent with due
process, but anything less than the very high level of
scrutiny the district court gave to the government’s
requests to submit ex parte evidence likely would not
be. Maj. Op. 39–45.
These are substantial constitutional holdings that cannot be
cabined to the specific facts of this case. Determinations of due
process turn on context, which requires courts to weigh
24
competing interests. When new circumstances arise, courts
invariably draw comparisons with the balance made in other
contexts to determine what process is due. 6 The majority’s
comparison of al-Hela’s detention to civil commitments
demonstrates the inevitability of this type of comparative
analysis. See Maj. Op. 31–33 (distinguishing this case from
Addington v. Texas, 441 U.S. 418 (1979)). Although the
majority asserts these holdings “resolve solely those claims in
this case,” Maj. Op. 14, its decision and reasoning set a new
benchmark for due process balancing that will impact future
decisions.
Moreover, the majority resolves al-Hela’s claims by
applying a watered-down version of the Due Process Clause to
accommodate the procedures applied at Guantanamo. This
limited view of due process threatens to undermine procedural
protections in the very contexts where they actually apply.
Failing to decide the threshold question here leads the
majority to render a series of entirely unnecessary
constitutional decisions. The majority correctly observes that
courts “should never anticipate a question of constitutional law
in advance of the necessity of deciding it.” Maj. Op. 14
(cleaned up). Yet by deciding what due process requires in the
6
See, e.g., Wilkinson v. Austin, 545 U.S. 209, 228–29 (2005)
(comparing the procedures required to place a prisoner in a
“Supermax” facility with those required to revoke parole or “good-
time credits”); Goldberg v. Kelly, 397 U.S. 254, 263–64 & n.10
(1970) (comparing the process required to terminate welfare benefits
with the process required to end government employment or tax
exemptions); Hamdi, 542 U.S. at 575 (Scalia, J., dissenting)
(decrying the plurality’s use of the same balancing test as “a case
involving … the withdrawal of disability benefits!”).
25
context of enemy detentions abroad, the majority does
precisely that.
If the majority believes aliens detained at Guantanamo are
entitled to protections of the Due Process Clause, despite
Eisentrager and its progeny, then it should declare its view of
the law rather than “coyly not[e] that the right is ‘assumed’
rather than ‘decided.’” Nelson, 562 U.S. at 165 (Scalia, J.,
concurring in the judgment). Perhaps implicitly recognizing
that such a forthright acknowledgment would fly in the face of
the Supreme Court’s unwavering adherence to Eisentrager, the
court instead charts a new path through the procedural due
process thicket.
B.
The majority also extends the reach of “substantive due
process.” Without a word of explanation, the majority simply
assumes without deciding that substantive due process
guarantees against punitive and arbitrary detention apply to
alien detainees at Guantanamo. See Maj. Op. 45. Whatever
implications Boumediene might have for procedural due
process, none of the Court’s analysis pertains to substantive
due process. The question supposedly left open by Boumediene
is “what detention review procedures are required by the Due
Process Clause.” Maj. Op. 13 (emphasis added). The
arguments about procedural due process remaining an open
question are misplaced for the reasons already discussed, but
absolutely nothing in Boumediene suggests that substantive
constitutional guarantees might apply extraterritorially or that
de facto sovereignty should generally determine the reach of
the Constitution. Boumediene was concerned purely with “the
fundamental procedural protections of habeas corpus.” 553
U.S. at 798; see also id. at 802 (Roberts, C.J., dissenting)
(“Habeas is most fundamentally a procedural right, a
26
mechanism for contesting the legality of executive
detention.”). “It bears repeating,” the Boumediene Court
insisted, “that our opinion does not address the content of the
law that governs petitioners’ detention.” Id. at 798 (majority
opinion) (emphasis added).
The majority applies substantive due process to
Guantanamo detainees notwithstanding that Boumediene on its
face was concerned entirely with procedural guarantees,
notwithstanding that the majority itself understands
Boumediene entirely in this sense, and notwithstanding that this
circuit has plainly held that substantive due process guarantees
do not apply to Guantanamo detainees. Kiyemba I, 555 F.3d at1026–27 (recognizing substantive due process does not apply
extraterritorially); see also Ali, 959 F.3d at 369 (finding a
detainee’s argument “that the Due Process Clause’s substantive
protections apply with full force to all detainees at Guantanamo
Bay … runs crosswise with this court’s decision” in
Kiyemba I). It seems these precedents have been abrogated sub
silentio by the en banc court.
Assuming substantive due process applies at Guantanamo,
the majority remands one of al-Hela’s claims to the district
court for further review. The majority claims to withhold
judgment on how the legal question should be resolved. But by
remanding, the majority has effectively determined that al-Hela
is entitled to the protections of substantive due process. The
majority recognizes the district court “need only reach the
merits of the overlapping substantive due process claim if it
finds that the claim is not moot and that the statutory claim is
without merit.” Maj. Op. 50. Although the district court may
avoid the constitutional question, the majority effectively holds
that al-Hela is entitled to the protections of substantive due
process.
27
It is one thing to assume without deciding the answer to a
constitutional question when doing so does not change the
disposition of the case. See, e.g., Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 217 (1995). Here the majority goes much
further, applying a threshold assumption to alter constitutional
rights by remanding al-Hela’s substantive due process claim.
This disposition directly contravenes Eisentrager and
subsequent Supreme Court decisions. Applying these
precedents would require dismissing al-Hela’s substantive
claims because as an alien abroad al-Hela is not entitled to the
protections of the Due Process Clause.
C.
In its treatment of the remand question, the majority makes
another serious legal error, mischaracterizing a previous panel
decision and effectively ignoring binding circuit precedent.
The majority states: “Whether the laws of war place any limits
on the President’s detention authority under the AUMF is an
open question in our circuit and should be addressed by the
District Court in the first instance.” Maj. Op. 49. This is flatly
incorrect. In Al-Bihani v. Obama, a panel of this court squarely
held that “[t]he international laws of war as a whole have not
been implemented domestically by Congress and are therefore
not a source of authority for U.S. courts.” 590 F.3d 866, 871
(D.C. Cir. 2010). Even more explicitly, we held it was
“mistaken” to conclude “that the war powers granted by the
AUMF and other statutes are limited by the international laws
of war.” Id.Declaring this question too is “open” cannot change the
fact that the Al-Bihani panel decision is binding law in this
circuit. The majority cannot distinguish the panel decision on
its own terms and therefore relies on a concurrence in the denial
of rehearing en banc, which opined that the panel opinion law-
28
of-war discussion was “not necessary to the disposition of the
merits” because there was an alternative holding. Al-Bihani v.
Obama, 619 F.3d 1, 1 (D.C. Cir. 2010) (Sentelle, C.J., and
Ginsburg, Henderson, Rogers, Tatel, Garland, & Griffith, J.J.,
concurring in the denial of rehearing en banc); see Maj. Op. 49.
This ex post characterization was entirely advisory: the court
did not grant en banc rehearing. The panel opinion, not
commentary on that opinion by other members of the circuit, is
controlling. In addition, the reasoning of the concurrence is at
odds with the full respect afforded to our precedents. As we
have repeatedly held, “where there are two grounds, upon
either of which an appellate court may rest its decision, and it
adopts both, the ruling on neither is obiter dictum, but each is
the judgment of the court, and of equal validity with the other.”
Nat. Res. Def. Council, Inc. v. Nuclear Regul. Comm’n, 216
F.3d 1180, 1189 (D.C. Cir. 2000) (cleaned up); see also Woods
v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“[W]here a
decision rests on two or more grounds, none can be relegated
to the category of obiter dictum.”).
Al-Bihani rested on two alternative holdings, and both are
binding. See 590 F.3d at 871 (rejecting the premise that “the
war powers granted by the AUMF and other statutes are limited
by the international laws of war”); id. at 873 (finding that the
government “can also draw statutory authority to detain Al-
Bihani directly from the language of the AUMF”) (emphasis
added). Al-Bihani has not been overturned, and so on remand
the district court must abide by this binding precedent holding
that the laws of war do not limit the scope of the AUMF.
D.
The majority’s novel constitutional holdings upend the
settled legal framework post-Boumediene and provide little
guidance for future claims. The result is an uncertain and
29
confusing legal landscape against which the Executive Branch
and district courts will struggle to address the due process
claims raised by Guantanamo detainees.
The judiciary has a relatively limited role in our tripartite
system of government. The Article III judicial power extends
as far as judicially enforceable rights and no further. U.S.
CONST. art. III, § 2 (extending “[t]he judicial Power” only to
“Cases” and “Controversies”). Our job is to “say what the law
is” and decide the case before us. Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803). Nothing more and nothing less.
Judges must exercise this power always mindful of its limits—
but within those limits, determining which approach is the
minimalist one is often more a matter of preference than law.
And it is often a feature of “minimalism” that it casts doubt on
a range of constitutional activity without ever stating clearly
what the Constitution requires in a particular context. The
practical result of a “supposedly ‘narrow’ opinion” too often is
to “bedevil our jurisprudence (and proliferate litigation) for
years to come.” Bond v. United States, 572 U.S. 844, 881–82
(2014) (Scalia, J., concurring in the judgment).
Our role of ensuring the political branches follow the
Constitution is critically important, but when the courts
exercise this power, clear pronouncements of constitutional
rules allow the political branches to conform their actions and
provide “a clearer sense of the constitutional limits to which
new legislative or policy initiatives must adhere.” Noriega v.
Pastrana, 559 U.S. 917, 927–28 (Mem.) (2010) (Thomas, J.,
dissenting from denial of certiorari) (cleaned up). The majority
provides no clear pronouncements. It states instead that the
procedures below “provided whatever process would be
required to satisfy” the Mathews test, yet the majority never
actually states what process would be required. Maj. Op. 24.
Even more confusing is the majority’s suggestion that it uses
30
“Hamdi as a benchmark for the most robust articulation of the
standard” to which detainees are entitled. Maj. Op. 25. The
majority never explains whether the Hamdi framework is
necessary or merely sufficient. Conversely, while Hamdi
perhaps sets a ceiling for the requisite standards, the majority
treats the district court’s procedures as a floor, “doubt[ing] that
anything less would suffice.” Maj. Op. 45. The majority never
clarifies which procedures are necessary and which are merely
sufficient. The result is a muddle of mixed messages.
The inevitable result of this uncertainty will be to ossify
district court procedures and engender further litigation, thus
interfering with “the province and responsibility of the
Executive” to protect national security and conduct foreign
affairs. Haig v. Agee, 453 U.S. 280, 294 (1981). The Executive
will scramble to anticipate and to abide by these yet-to-be-
defined constitutional protections in habeas and military
commission proceedings. Because the en banc court provides
so little guidance, the only thing that is now certain is that more
litigation and judicial supervision of foreign affairs will be
necessary to understand the contours of these assumed due
process rights.
And spare a thought for the district court, which must now
revisit the previously settled framework for resolving the
claims of Guantanamo detainees. When detainees invariably
raise due process challenges to the procedures and substantive
law governing their detention, what law should the district
court apply? Must the district court simply assume that the Due
Process Clause applies and then resolve detainee claims under
the watered-down standard of the majority? If the district court
follows the assuming-without-deciding approach, then the
majority’s holding will be equivalent to saying the Due Process
Clause applies to Guantanamo detainees—in direct
contravention of Eisentrager and the many cases following it.
31
Alternatively, the district court may recognize that the en banc
majority has not in fact held that the Due Process Clause
applies to Guantanamo detainees, leaving the lower courts free
to recognize that Eisentrager governs the issue. See Maj. Op.
17 (emphasizing it is “unnecessary” “to resolve the Eisentrager
debate in one direction or the other”). In fact, it is perhaps more
accurate to say the district court must follow the governing
Supreme Court precedent—untouched by the en banc court—
that has resoundingly held the Due Process Clause does not
apply outside the territorial United States, an area that includes
Guantanamo Bay.
***
The court today ignores the fundamental principle, long
recognized by the Supreme Court and this circuit, that the
protections of the Constitution do not extend to aliens outside
the sovereign territory of the United States. Holding open the
possibility that the Due Process Clause applies to enemy aliens
detained at Guantanamo Bay, the court renders a series of
hypothetical decisions about al-Hela’s procedural due process
claims. The government wins, as it should, but the court
establishes a low bar for future due process claims from
Guantanamo detainees and, more importantly, for claims in
other contexts. The court also effectively concludes that al-
Hela enjoys the protections of substantive due process. And, to
top it off, the court newly asserts that the laws of war may limit
the terms of the AUMF. Needless to say, somewhere along the
way the majority lost its narrow constitutional path.
The Supreme Court in Boumediene stressed the unique and
sensitive context of enemy aliens detained in the War on
Terror, explaining that “[i]n considering both the procedural
and substantive standards used to impose detention to prevent
acts of terrorism, proper deference must be accorded to the
32
political branches.” Boumediene, 553 U.S. at 796–97 (citing
Curtiss-Wright, 299 U.S. at 320). “The law must accord the
Executive substantial authority to apprehend and detain those
who pose a real danger to our security.” Id. at 797. The majority
ignores this context, as well as longstanding constitutional
principles, to create a shadowy framework for judicial
oversight of the prosecution of enemy combatants in the War
on Terror.
Because al-Hela is neither an American citizen nor present
in the United States, he cannot claim the protections of the Due
Process Clause. I concur in the judgment to the extent the
majority denies al-Hela’s procedural and substantive due
process claims. As to the rest, I respectfully dissent.
RANDOLPH, Senior Circuit Judge, with whom HENDERSON
and WALKER, Circuit Judges, join, concurring in the judgment
and dissenting:
I.
The question on rehearing en banc was whether the Fifth
Amendment’s Due Process Clause applies to alien enemies,
such as al-Hela, held at the U.S. Naval Station, Guantanamo
Bay, Cuba.
The majority does not answer the question. Instead, it
assumes without deciding that the Due Process Clause does
apply. The majority’s reason for adopting this device? Because
the question is unresolved, or so it claims.
That has things upside down. When an important and
recurring but unresolved question is confronting our court, that
is a reason for deciding the question en banc, not for evading it
and perpetuating uncertainty. See FED. R. APP . P. 35(a).
There is another problem with the majority’s explanation.
Its opinion distorts the law of our circuit and of the Supreme
Court.
More than a decade ago our court held that the Due Process
Clause did not apply to the alien enemies detained at
Guantanamo. “Decisions of the Supreme Court and of this court
. . . hold that the due process clause does not apply to aliens
without property or presence in the sovereign territory of the
United States.” Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C.
Cir. 2009), vacated, 559 U.S. 131 (2010), reinstated as
amended, 605 F.3d 1046 (D.C. Cir. 2010) (per curiam),
certiorari denied, 563 U.S. 954 (2011) (Breyer, J., joined by
Kennedy, Ginsburg, and Sotomayor, JJ., concurring); accord
Bahlul v. United States, 840 F.3d 757, 796 (D.C. Cir. 2016) (en
2
banc) (Millett, J., concurring).
Given the prominence of the Kiyemba case, with its trips
back and forth from our court to the Supreme Court, it is
impossible to suppose that Kiyemba’s Due Process holding
escaped attention. There is more to say about the majority’s
misrepresentation of circuit law,1 but I will leave it at that.
The majority offers another explanation for not deciding
the en banc question: “whether the Due Process Clause applies
to a habeas petition filed by a foreign national detained at the
Guantanamo Bay military base as an alleged enemy combatant
is a question that the Supreme Court has not yet answered.”
Maj. Op. 12.
That statement is true, but it is true only in the same trivial
sense that the following statement is also true: “‘The Supreme
Court has not yet answered’ whether the Due Process Clause
applies to a citizen arrested by the FBI in Last Chance, Idaho,
for distributing drugs.”
One might make some sense of the statement if it resulted
from a careful analysis of Supreme Court precedents, some of
which are cited in the margin.2 But the majority opinion
displays no awareness of the holdings of these Supreme Court
1
See Ali v. Trump, 959 F.3d 364, 378–80 (D.C. Cir. 2020)
(Randolph, J., concurring in the judgment), citing among other D.C.
Circuit decisions, Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009),
and Al-Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011).
2
See, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950); United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990); Zadvydas v. Davis,
533 U.S. 678 (2001); DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020);
see also Rao Dissent 3-8.
3
decisions, let alone an analysis of them, careful or cursory.
At an earlier stage in this case, when the Department of
Justice was acting responsibly, see infra pp. 11–13, the
government provided a succinct, forceful and accurate statement
of Supreme Court law. That submission stands in vivid
contradiction of the majority opinion and deserves full
quotation:
“The Supreme Court’s ‘rejection of extraterritorial
application of the Fifth Amendment’ has been ‘emphatic.”
United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990).
In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held
that aliens arrested and imprisoned overseas could not seek writs
of habeas corpus on the theory that their convictions had
violated the Fifth Amendment. The Court explained that ‘[s]uch
extraterritorial application . . . 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.’ Id. at 784. Yet ‘[n]ot one word can be
cited. No decision of this Court supports such a view. None of
the learned commentators on our Constitution has even hinted
at it.’ Id. (citation omitted); accord United States v. Curtis-
Wright Exp. Corp., 299 U.S. 304, 318 (1936); Yamataha v.
Fisher, 189 U.S. 86, 101 (1903); Yick Wo v. Hopkins, 118 U.S.
356, 369 (1886). The Court’s holding in Eisentrager
‘establish[es]’ that the ‘Fifth Amendment’s protections’ are
‘unavailable to aliens outside of our geographical borders.’
Zadvydas v. Davis, 533 U.S. 678, 693 (2001).”3
II.
After assuming that the Fifth Amendment applies, the
3
U.S. Panel Br. 64.
4
majority invokes Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to
test whether al-Hela was “deprived of life, liberty, or property,
without due process of law.” U.S. CONST. amend. V.
But the portion of “Hamdi” the majority relies upon was not
a decision of “the Supreme Court.” Maj. Op. 9; see also id. at
21 (“the Court”). It was only a plurality opinion by Justice
O’Connor. See Hamdi, 542 U.S. at 529–39 (plurality opinion).
And none of the separate opinions in Hamdi endorsed, explicitly
or implicitly, Justice O’Connor’s due process analysis (for good
reason, as explained below). See id. at 553 (Souter, J., joined by
Ginsburg, J., concurring in the judgment), 575–76 (Scalia, J.,
joined by Stevens, J., dissenting), 594 (Thomas, J., dissenting).
So the question naturally arises – what is the majority’s
justification for relying on this plurality opinion? The pattern
holds – the majority offers no reason. It simply slaps the Hamdi
plurality opinion down on the table and starts discussing how it
would affect al-Hela.
Especially in view of the significant differences between
Hamdi and this case, that is not responsible decision-making.
One of the most important distinctions is that Hamdi was
born in Louisiana and is an American citizen.4 Al-Hela is not an
American citizen.
Another is that Hamdi, held as an enemy combatant, was
imprisoned in Virginia and South Carolina.5 In contrast, al-Hela
has never set foot in this country; and he is being held at a
4
Hamdi, 542 U.S. at 510 (plurality opinion); see also Ex parte
Milligan, 71 U.S. (4 Wall.) 2, 121–22 (1866).
5
Hamdi, 542 U.S. at 510 (plurality opinion).
5
military base outside of the United States.
And then there is the point that Hamdi’s habeas arguments
rested on 28 U.S.C. § 2241, the habeas statute for federal
prisoners.6 Al-Hela, on the other hand, invokes the common law
writ of habeas corpus, which he claims the Suspension Clause
of the Constitution preserved.7
At this point it is worth pausing to note that in DHS v.
Thuraissigiam, 140 S. Ct. 1959 (2020), seven Justices (five in
the majority plus two others) joined opinions indicating that
whether the Suspension Clause independently preserved a
common law writ of habeas corpus was an “open” question,8 a
6
Hamdi, 542 U.S. at 511, 525–26 (plurality opinion).
7
The majority opinion claims that I “mistakenly assert[]” that al-
Hela relies on the common law writ of habeas corpus. Maj. Op. 3.
There is a mistake, but it is the majority’s. Al-Hela’s jurisdictional
statement in his en banc brief cited 28 U.S.C. § 2241 on page 1 and
never mentioned the statutory provision again. Instead, his brief and
his argument relied entirely on Boumediene v. Bush, and its view of
the Suspension Clause and the common law writ. See 553 U.S. 723,
732, 748, 779 (2008); see also Ex parte Bollman, 8 U.S. (4 Cranch)
75, 93–94 (1807) (“That for the meaning of the term habeas corpus,
resort may unquestionably be had to the common law . . ..” (emphasis
removed)), relied upon in Boumediene, 553 U.S. at 779.
8
The Suspension Clause provides: “The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S. CONST.
art. 1, § 9, cl. 2. Whether the Clause itself “guarantees the availability
of the writ or simply restricts the temporary withholding of its
operation” if the writ is otherwise available “is subject to
controversy.” Thuraissigiam, 140 S. Ct. at 1969 n.12. Compare INS
v. St. Cyr, 533 U.S. 289, 300 (2001), with id. at 336–41 (Scalia, J.,
dissenting).
6
development that astonished at least one learned commentator.
See Lee Kovarsky, Habeas Privilege Origination and DHS v.
Thuraissigiam, 121 COLUM. L. REV. F. 23, 36–37 (2021).
True to form, the majority opinion, while supplying
hypothetical content to the writ of habeas corpus preserved by
the Suspension Clause, fails to take into account that seven
Justices think it is not settled whether the Suspension Clause
even preserves the common law habeas writ.
To round things out, the very Supreme Court opinion the
majority purports to be interpreting – Boumediene – held that
Hamdi did not apply to the detainees at Guantanamo. That of
course directly contradicts the entirety of the majority opinion.
The Supreme Court in Boumediene put it this way: “Hamdi
did not garner a majority of the Court, it does not control the
matter at hand. None of the parties in Hamdi argued there had
been a suspension of the writ. Nor could they. The § 2241
habeas process remained in place.” Boumediene v. Bush, 553
U.S. 723, 784 (2008).
There is yet another crucial consideration, one the majority
again suppresses.
It is this. As Boumediene recognized, even on the narrowest
reading of the Hamdi plurality opinion, nothing that matters here
commanded the approval of a majority of the Justices. See
Marks v. United States, 430 U.S. 188, 193 (1977). In that
circumstance, the proper course “is to follow the Supreme
Court’s pre-existing precedent.” Abbas v. Foreign Pol’y Grp.,
LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015). In al-Hela’s case,
that precedent is Johnson v. Eisentrager, which held that alien
enemies detained overseas are not “persons” within the meaning
of the Fifth Amendment’s Due Process Clause. 339 U.S. 763,
7
784–85 (1950).
III.
Having decided to assume without deciding the Fifth
Amendment issue, the majority had to discern the content of due
process for detainees at Guantanamo. Although Boumediene
itself left the issue open, as the majority rightly acknowledges,9
there are close Supreme Court analogies.
One is due process for aliens illegally trying to enter the
United States and detained at the border. Another is due process
in the military context; Guantanamo, after all, is a military base
and the detainees there are military prisoners.
As to illegal aliens, the Court has long held that “the only
procedural rights of an alien seeking to enter the country are
those conferred by statute.” Thuraissigiam, 140 S. Ct. at 1977.
In other words, “‘the decisions of executive or administrative
officers, acting within powers expressly conferred by Congress,
are due process of law.’” Id. (quoting Nishimura Ekiu v. United
States, 142 U.S. 651, 660 (1892)).
As to the military context, the Court has “recognized in past
cases that ‘tests and limitations of [due process] may differ
because of the military context.’” Weiss v. United States, 510
U.S. 163, 177 (1994) (alteration in original) (quoting Rostker v.
Goldberg, 453 U.S. 57, 67 (1981)).
Rather than drawing on either or both of these analogous
lines of cases, the majority adopts as its Due Process test for
Guantanamo detainees, Mathews v. Eldridge, 424 U.S. 319(1976), a case dealing with the denial of disability benefits! See
9
See Maj. Op. 13; Boumediene, 553 U.S. at 785–87.
8
Maj. Op. 19.
The majority’s explanation? Mathews “is the leading
authority for deciding what procedural protections are required
to comport with the Due Process Clause.” Id. But Mathews is
not “the leading authority,” or for that matter, any authority in
cases involving illegal aliens held at the border. And in Weiss,
the Supreme Court flatly rejected the argument that “the due
process analysis established in Mathews v. Eldridge” should
apply in the military context. Weiss, 510 U.S. at 177.10
IV.
The majority opinion makes much of a single word,
repeated several times in the Boumediene opinion. The word is
“meaningful.”11 Maj. Op. 22–24.
Boumediene stated that “The Privilege of the Writ of
10
Mathews v. Eldridge was never meant to bear the weight of
determining sufficient process for a putative liberty interest. See
Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18,
59–60 (1981) (Stevens, J., dissenting). To the contrary, it derived
from and sought to settle controversies over entitlement to public
benefits—matters that courts were viewing as property interests. See
Mathews v. Eldridge, 424 U.S. 319, 332–33 (1976); Goldberg v.
Kelly, 397 U.S. 254, 262 n.8 (1970). Nothing suggested that Mathews
would govern cases regarding liberty interests, particularly where the
Constitution and common-law history already supplied answers. See
424 U.S. at 333–34.
11
There is a hint or two in the majority opinion that by using this
word, the Boumediene opinion smuggled the Due Process Clause into
its holding, even though Justice Kennedy, writing for the majority,
disavowed doing any such thing.
9
Habeas Corpus” in the Suspension Clause entitled a
Guantanamo prisoner to a “meaningful opportunity to
demonstrate that he is being held” contrary to law. 553 U.S. at
779. The Court’s use of “meaningful” came out of the blue. It
lacked context and it supplied no content, and the Court, having
laid it down, just moved on without further elaboration.
Before placing so much weight on a single word, the
majority here should have asked, but did not, “meaningful”
habeas corpus in comparison to what? That essential inquiry
would have yielded several options.12
“Meaningful” as in the common law writ of habeas corpus
ad subjiciendum in 1789, in this country or in England? Or
habeas corpus for aliens facing deportation? For members of the
United States armed forces who faced court martial? For
criminals convicted in state court? In federal court? For
criminal defendants awaiting trial? For those held by state or
federal authorities without being charged with committing a
criminal offense?
In the first part of the Boumediene opinion, dealing with the
geographical reach of the common law writ of habeas corpus as
preserved in the Suspension Clause, all nine Justices agreed that
the answer depended on whether the common law writ in 1789
extended beyond a country’s sovereign territory. 553 U.S. at
739; id. at 801, 818 (Roberts, C.J., joined by Scalia, Thomas,
and Alito, J.J., dissenting); id. at 826–27 (Scalia, J., joined by
Roberts, C.J., and Thomas, and Alito, J.J., dissenting).
12
The great philosopher of science, Sir Karl Popper, once
supplied a list of commonly used terms that were “trivial,” and
“philosophically unimportant.” Near the top of the list was
“meaningful.” KARL POPPER, UNENDED QUEST: AN INTELLECTUAL
AUTOBIOGRAPY 21 (1990).
10
No good reason appears – the majority here supplies none
– for treating the content of the common law writ any differently
than its geographic scope. Thus, what amounts to a
“meaningful” common law writ of habeas corpus preserved by
the Suspension Clause necessarily depends on the content of the
writ in 1789.
That is the analysis the Supreme Court used in its latest
decision concerning the Suspension Clause and “[t]he Privilege
of the Writ of Habeas Corpus.” In deciding the petitioner’s
claim, the Court examined how “the writ of habeas corpus was
understood at the time of the adoption of the Constitution.”
Thuraissigiam, 140 S. Ct. at 1969.
As applied to this case, we can be absolutely certain that the
Framers of the Suspension Clause in 1789 did not intend to
incorporate the Fifth Amendment and its Due Process Clause.
We can be certain of this because in 1789 there was no Fifth
Amendment.
The common law writ of habeas corpus, as it existed in
1789, allowed a prisoner to obtain only limited judicial review
of his detention. The process required the jailor to produce the
prisoner, accompanied by the indictment, warrant, and a return
stating reasons for confining the prisoner. Habeas Corpus Act
of 1679, 31 Car. 2, c.2, § II (Eng.);13 Paul D. Halliday & G.
Edward White, The Suspension Clause: English Text, Imperial
13
“With the sole exception of Connecticut, which passed its own
unique habeas corpus statute in 1821, all of the habeas corpus acts
passed in the thirteen original colonies or states were patterned after
the English [Habeas Corpus Act of 1679].” Dallin H. Oakes, Habeas
Corpus in the States—1776-1865, 32 U. CHI. L. REV. 243, 253 (1965);
see also AMANDA L. TYLER, HABEAS CORPUS IN WARTIME 102–08,
119–21 (2017).
11
Contexts, and American Implications, 94 VA. L. REV. 575,
598–99 (2008). A prisoner could not “traverse,” or contest, the
return. Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29,
43–45 (1758). The prisoner was not permitted to introduce
evidence to controvert the truth of the return, and the habeas
court lacked power to examine its truth. Id. at 43; Dallin H.
Oakes, Legal History in the High Court—Habeas Corpus, 64
MICH. L. REV. 451, 453 (1966).
This was the meaning of “[t]he Privilege of the Writ of
Habeas Corpus” as “understood at the time of the adoption of
the Constitution,” Thuraissigiam, 140 S. Ct. at 1969, and it
remained valid across the board for nearly a century until federal
legislation altered habeas procedures for citizens imprisoned in
the United States. See Note, Developments in the Law —
Federal Habeas Corpus, 83 HARV . L. REV. 1038, 1113–14
(1970).
The majority pays no attention to this history in determining
the content of the writ to which al-Hela is entitled, even though
Boumediene suggests that it should and Thuraissigiam holds that
it must.
V.
Fifteen years ago the Solicitor General, the chief litigating
official representing the United States, stated in the
government’s Supreme Court brief that detainees at
Guantanamo have “no due process” rights. Brief for the
Respondents at 68, Boumediene, 553 U.S. 723 (Nos. 06-1195 &
06-1196). In support, the Solicitor General provided a
comprehensive analysis of “well established” legal principles
showing “that the Fifth Amendment, including its Due Process
Clause, does not apply to aliens who have no presence in any
12
territory over which the United States is sovereign.” Id.14
The Supreme Court did not reach the Due Process question
in Boumediene. Years later, when al-Hela’s case came before
a panel of this court, the United States reiterated the position it
had taken in the Supreme Court and in intervening cases before
our court – “consistent with controlling precedent – that al-Hela
lacks due process rights.” U.S. Panel Br. 64. I have already
quoted the government’s analysis. See supra p. 3. Our panel, of
which I was a member, agreed with that analysis.
Al-Hela petitioned for rehearing en banc. The United States
again objected in December 2020: “The panel decision correctly
applies longstanding precedent to conclude that the Due Process
Clause, unlike the Suspension Clause, does not apply to
al-Hela.” U.S. Opposition to Petition for Rehearing En Banc at
6.
Yet on rehearing en banc, in its brief filed on July 9, 2021,
the Civil Division of the Department of Justice declined – as
their attorneys put it – to “renew” their argument that the Due
Process Clause does not apply at Guantanamo. U.S. En Banc Br.
24.
What changed between December 2020 and July 2021? At
the en banc oral argument, held in September 2021, we sought
to understand what exactly the Justice Department knew now
that it did not know then. The Constitution was the same. No
Supreme Court decision on which the Solicitor General had
relied in presenting the position of the United States in
14
The Solicitor General cited and relied on the following
decisions: Zadvydas v. Davis, 533 U.S. 678, 693 (2001), United States
v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), and Johnson v.
Eisentrager, 339 U.S. 763, 784–85 (1950).
13
Boumediene or in this court had been overruled or called into
doubt.
And so we asked for an explanation. The Civil Division
attorney responded: “I’ll be honest, it is the change in
administration.” Oral Arg. Tr. 89:23–24.
That is not a legal explanation. It is a political excuse. It
brings to mind Justice Scalia’s question, a question the Chief
Justice and other Justices asked in oral arguments when
confronting such rare DOJ about-faces: “Why should . . . we
listen to you rather than the solicitors general who took the
opposite position . . .?” Michael R. Dreeben, Stare Decisis in
the Office of the Solicitor General, 130 YALE L.J.F. 541, 549,
550–51 (2021) (internal quotation marks omitted).
In this case, the answer to Justice Scalia’s question is that
we should give no credit to the Justice Department’s political
retreat from the well-established Constitutional principles it
vigorously advocated throughout the three Administrations
preceding this one, that the Due Process Clause does not extend
outside the United States to military prisoners at Guantanamo.