Al-Hela v. Biden and Due Process at Guantanamo

On April 23, the U.S. Court of Appeals for the District of Columbia granted Guantanamo Bay detainee Abdulsalam Ali Abdulrahman Al-Hela’s petition for a rehearing en banc to consider his claim for habeas corpus relief under the Due Process Clause of the Fifth Amendment. This vacated a 2020 panel opinion that had rejected al-Hela’s claims on the grounds that, as a nonresident alien without presence or property in the United States, he possessed no constitutional due process rights. Granting rehearing positions the en banc D.C. Circuit to potentially confront the question of whether the Due Process Clause reaches the detainees at Guantanamo Bay, an issue that it has thus far avoided deciding—even as another set of petitioners is seeking to secure Supreme Court review of the same question in the separate matter of Ali v. Trump. Oral argument before the en banc court is currently scheduled for Sept. 30.

This post provides an overview of the key issues at play in Al-Hela. This post will situate Al-Hela within ongoing Guantanamo litigation, including Ali; describe the background and case history of Al-Hela; detail the Al-Hela panel opinion, as well as Judge Raymond Randolph’s and Judge Thomas Griffith’s concurrences; and discuss the case’s future and its implications.

Situating Al-Hela Within Guantanamo Litigation

The question of whether nonresident aliens located overseas possess constitutional rights is not a new one. In Johnson v. Eisentrager (1950), the Supreme Court held that U.S. courts lacked jurisdiction over constitutional claims by nonresident alien German war criminals detained in U.S.-administered prisons in Germany after World War II because such parties lacked constitutional rights. However, in the landmark decision Boumediene v. Bush (2008), the Supreme Court ruled that nonresident aliens detained at Guantanamo Bay do have rights, under the Constitution’s Habeas Corpus Suspension Clause, including to “a meaningful opportunity” to challenge the basis for their detention. In reaching this conclusion, Boumediene emphasized functional factors like the detainees’ citizenship and status; the nature of the site at issue, including the U.S. intention to permanently occupy Guantanamo, American de facto sovereignty, and Cuba’s status as a nonactive war zone; and the lack of practical obstacles to extending the writ to Guantanamo. To ensure that these challenges did not generate disclosure of classified information, the U.S. District Court for the District of Columbia developed a standing case management order outlining discovery procedures for Guantanamo detainee habeas cases. 

Since Boumediene recognized detainees’ Suspension Clause rights, the Supreme Court has not addressed the adjacent question of whether Guantanamo detainees have Due Process Clause rights. The Fifth Amendment guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of law.” The clause has been read to protect “procedural” rights to a fair trial and reasonable opportunity to be heard before a neutral magistrate, as well as certain “substantive” rights that cannot be abridged, no matter the process. If due process applied at Guantanamo, detainees’ rights and mechanisms for challenging their detention would greatly expand.

The D.C. Circuit has heard several Guantanamo cases raising the due process issue, although prior to Al-Hela, it had declined to settle definitively whether Guantanamo detainees have due process rights. Typically, the court chose to “assume without deciding” that detainees do have due process rights but then argue that, even if so, they were not violated. The court, thus, applied the “constitutional avoidance” canon of construction, reserving the question of due process’s applicability for a later date. For example, in Aamer v. Obama (2014), the court “assume[d] without deciding that the [due process] constitutional right to be free from unwanted medical treatment extends to nonresident aliens detained at Guantanamo,” only to then reject Aamer’s claim because this right, even if he could assert it, was not violated. One outlier statement among the D.C. Circuit cases was in Kiyemba v. Obama (2010): “[T]he due process clause does not apply to nonresident aliens without property or presence in [U.S.] sovereign territory.” This statement suggested a return to pre-Boumediene formalism focused on de jure sovereignty, rather than Boumediene’s functional emphasis on Guantanamo’s unique role and status. However, in Qassim v. Trump (2019), the D.C. Circuit cabined Kiyemba’s broad claim as dictum, explaining that Kiyemba did not deny Guantanamo detainees all due process rights, only the right to be released into the U.S.

Months before Al-Hela, on May 15, 2020, the D.C. Circuit decided Ali v. Trump (2020). Ali, a nonresident alien detained at Guantanamo, challenged the length of his detention on due process grounds—both substantive and procedural. Judge Royce Lamberth of the D.C. District Court had denied Ali’s challenge, finding the Due Process Clause was categorically barred to nonresident aliens detained at Guantanamo. A divided three-judge D.C. Circuit panel, in a majority opinion written by Judge Patricia Millett that Judge Judith Rogers joined in full, affirmed that Ali’s due process rights were not violated but found Lamberth’s categorical denial of due process “misplaced.”

Although Millett rejected Lamberth’s categorical denial, she also resisted categorically granting due process rights. Instead, because Ali claimed wholesale applicability of the Due Process Clause, Millett found that the case could be decided narrowly—by simply rejecting the view “that the Due Process Clause’s procedural and substantive requirements apply wholesale, without any qualifications, to habeas corpus petitions filed by all Guantanamo detainees.” She emphasized that post-Boumediene, courts should take a functional, issue-by-issue approach to Guantanamo detainee rights cases and quoted Qassim to argue that “precedent has not yet comprehensively resolved which ‘constitutional procedural protections apply to the adjudication of detainee habeas corpus petitions,’ and whether those ‘rights are housed’ in the Due Process Clause, the Suspension Clause, or both.” She concluded that even if Ali had due process rights, his specific due process challenge to his detention’s length would be barred, regardless.

Randolph—a vocal Boumediene critic—concurred only in the judgment. Citing Judges Karen Henderson and Neomi Rao’s Qassim dissent, Randolph argued Qassim itself should be overturned and that Supreme Court precedent bars due process rights categorically to nonresident aliens detained at Guantanamo. 

Al-Hela v. Trump: Background and the District Court Opinion

Al-Hela, a prominent Yemeni businessman and tribal sheikh apprehended in Egypt in 2002 by American forces and transferred to the CIA for interrogation, has been detained at Guantanamo Bay since 2004. The government asserted, as the basis for detention, that Al-Hela maintained contact with several known and suspected al-Qaeda affiliates.

In 2005, Al-Hela filed a petition for habeas corpus, claiming the president lacked the legal authority to detain him under the 2001 Authorization for Use of Military Force (AUMF). In compliance with the D.C. Circuit’s standing case management order, Al-Hela could view only an unclassified summary of the factual evidence against him. His counsel could view most classified information and the government could, after obtaining permission from the court for ex parte, in camera review, withhold particularly sensitive evidence. Claiming due process rights violations, Al-Hela filed several motions for additional discovery, demanding his counsel access the government’s ex parte filings, despite the particularly sensitive classified information, and personal access to the classified filings given only to his counsel. Lamberth denied them. He also denied Al-Hela’s habeas petition on the grounds that the AUMF and related statutes permitted the detention of individuals about whom the government had provided sufficient evidence that they had “substantially supported” terrorist organizations. Finally, Lamberth rejected Al-Hela’s claim that the Due Process Clause entitled his release, holding categorically that “the due process clause does not apply to Guantanamo detainees.” Al-Hela appealed these rulings to the D.C. Circuit.

  Al-Hela v. Trump: The Circuit Court Panel

On Aug. 28, 2020, a three-judge D.C. Circuit panel unanimously affirmed the district court’s denial of Al-Hela’s petition and motions for discovery. Rao wrote the opinion with Randolph and Griffith each writing separate concurring opinions. While all three believed Al-Hela’s constitutional rights challenges failed, Rao and Randolph held that nonresident alien detainees at Guantanamo lack constitutional due process rights to assert. Griffith, by contrast, argued the court should not have reached the question of due process rights’ applicability, because even if Al-Hela had due process rights, they were not violated.

Rao’s Panel Opinion

First, Rao affirmed the district court ruling that the AUMF and the National Defense Authorization Act of 2012 authorized detention for persons “who substantially supported” al-Qaeda affiliated terrorists and that the record demonstrated this support.

Second, Rao affirmed that the district court’s rulings did not violate Al-Hela’s Suspension Clause rights because, after Boumediene, “Guantanamo detainees are entitled to a ‘meaningful opportunity’ to challenge the basis for their detention, not a perfect one.” She rebutted three separate arguments. She argued the Suspension Clause does not bar evidence containing multiple layers of anonymous hearsay, and further, since the district court found the evidence reliable, its admission did not deny Al-Hela “meaningful” habeas proceedings. The Suspension Clause does not require allowing Al-Hela “personal access to the charges and evidence against him” when such access risks compromising sources and methods, according to Rao. And, given the importance of secrecy to national security, Rao held that the Suspension Clause does not guarantee Al-Hela’s counsel access to particularly sensitive classified information in government filings.

Third, and finally, she denied Al-Hela’s due process challenge as a threshold matter, without reaching the merits, finding the Due Process Clause—both substantive and procedural—categorically unavailable to nonresident aliens outside U.S. sovereign territory. Eisentrager’s holding, according to Rao, denied that nonresident aliens outside of the U.S. had any “Fifth Amendment rights” without distinguishing “substantive” and “procedural” components.

Rao rejected Al-Hela’s argument that his detention’s indefiniteness rendered it excessive and punitive and thus violated his substantive due process rights. She relied on Eisentrager’s formalistic approach, under which substantive due process rights were categorically barred for a nonresident alien detained outside of U.S. sovereign territory. The panel rejected Al-Hela’s contention that Boumediene’s extension of habeas protections to Guantanamo detainees altered the long-standing Eisentrager rule. Rather, Boumediene was strictly limited to the Suspension Clause, and the Boumediene court “recognized the exceptional nature of its holding.” Moreover, Qassim and Ali should be read as only reserving the question of procedural due process, but definitively deciding that substantive due process does not apply because such a finding “would run ‘crosswise with this court’s decision in Kiyemba.’”

The panel also categorically denied the application of procedural due process rights to Guantanamo detainees. Rao reiterated her substantive due process argument that Eisentrager’s categorical approach still controlled Fifth Amendment rights assertions, regardless of Boumediene. She further asserted that post-Eisentrager Supreme Court precedent involving aliens abroad foreclosed due process rights, referencing dictum in U.S. v. Verdugo-Urquidez (1990), which, in rejecting the extraterritorial application of the Fourth Amendment to aliens, insisted that “Eisentrager’s ‘rejection of extraterritorial application of the Fifth Amendment was emphatic.’” She also cited USAID v. Alliance for Open Society (2020), which, in denying foreign affiliates’ First Amendment rights, cited Eisentrager, Boumediene and Verdugo-Uruquidez, while also noting that “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.” Therefore, reading Boumediene as extending procedural due process rights to nonresident aliens extraterritorially impermissibly reads Boumediene to repeal Eisentrager and settle case law.

Griffith’s Concurrence: A Narrower Ruling?

In a concurrence, Griffith joined the panel, except he deemed unnecessary and contrary to judicial restraint to find that the Due Process Clause does not apply to Guantanamo detainees. Whether due process rights applied at all to nonresident alien Guantanamo detainees was, to Griffith, “a question with immense sweep that our court has repeatedly reserved for a case in which its answer matters. It does not here.” He noted that the D.C. Circuit had repeatedly “assumed without deciding” the existence of due process rights in cases like Ali and Aamer, suggesting case law was not definitive.

Rather than answer this question, Griffith argued Al-Hela’s claims could be rejected under the D.C. Circuit’s Suspension Clause jurisprudence alone, concluding that case law “provides Al-Hela as much process as he would have been due under the Due Process Clause with respect to his particular claims.” Even if Al-Hela had due process rights, they were not violated because due process rights are roughly equivalent to the Suspension Clause rights Boumediene outlined. Justifying the Suspension Clause-Due Process analogy, Griffith relied on Boumediene’s similarities to the Supreme Court’s standard procedural due process balancing test. In the former, detainees’ “meaningful opportunity” to challenge their detention is balanced against the government’s national security concerns; in the latter, detainees’ interests are weighed against the government’s, as Hamdi v. Rumsfeld (2004) and Mathews v. Eldridge (1976) outline. 

Rao countered Griffith’s concurrence regarding both substantive and procedural due process. On the procedural due process issue, she conceded that Qassim and Ali never dispositively decided the question and that past cases had “assumed without deciding that certain due process rights might apply to Guantanamo.” However, she believed the D.C. Circuit was evading responsibility by endlessly punting on the question. She insisted that Al-Hela was the proper vehicle to finally reach a decision, because the case “squarely presents the question,” and the question was fully briefed.

The argument for why Al-Hela squarely presented the issue rested on the fact that no single, categorical rule, applying the same precise rights to all parties in all cases, governs procedural due process questions. Rather, exactly which procedural due process rights apply varies dramatically depending on a case’s specific facts and circumstances. To “assume without deciding” that due process applied would not yield clear answers regarding whether Al-Hela’s rights were violated. It would instead “require” the court to “articulate and apply distinct constitutional standards” tailored to Al-Hela’s specific circumstances. No precedent directly addressed Al-Hela’s specific claims—use of anonymous, multi-layered hearsay and denial of personal access to the charges and evidence violated due process. Therefore, the court could not “assume the same interests and balance identified” in the closest analogy, Hamdi v. Rumsfeld, which involved a U.S. citizen detained in the United States, “would apply to noncitizens detained outside [U.S.] territory.” In Rao’s view, the flexibility and particularized nature of procedural due process balancing required elaboration of a new constitutional standard, preventing the D.C. Circuit from fully avoiding enunciation of new constitutional rules.  

Randolph’s Concurrence: Overturn Qassim

Randolph concurred with Rao’s categorical denial of due process “not only for the reasons expressed … but also for the additional reasons stated in my opinion concurring in the judgment in Ali v. Trump.” In Ali, Randolph concurred only in the judgment and argued that Qassim should be overturned. He asserted that “Eisentrager’s holding was clear, it was precise, and it was contrary to Qassim: a nonresident alien enemy detained by the United States outside of our sovereign territory was, the Court decided, not ‘any person’ within the meaning of the Fifth Amendment and therefore not entitled to the protections of the Due Process Clause,” and he condemned Qassim for omitting this interpretation of “any person.”

  Rehearing En Banc and Implications Moving Forward

The D.C. Circuit granted Al-Hela’s petition for a rehearing en banc, specifically regarding “whether [Al-Hela] is entitled to relief on his claims under the Due Process Clause.” The petition rejected Rao’s finding that circuit precedent foreclosed substantive due process rights challenges, arguing that precedent never directly answered the question of the applicability of substantive due process at Guantanamo. It also rejected Rao’s categorical approach to the question conflicts with Boumediene’s examination of functional factors beyond de jure sovereignty and, echoing Griffith’s concurrence, that Qassim “recognized that under Boumediene, the procedural protections guaranteed by the Suspension Clause essentially embody those guaranteed by the Due Process Clause.”

Meanwhile, Ali, raising the same legal question, appealed the D.C. Circuit’s denial of his due process claims, petitioning the Supreme Court for certiorari. Ali’s petition illustrates the importance of the due process question in Al-Hela. Emphasizing Al-Hela’s categorical denial of due process rights, Ali argues that the Supreme Court must settle the question of whether due process rights apply to nonresident aliens detained at Guantanamo, given uncertainties in D.C. Circuit precedent and the wider implications the question poses.

The question of the applicability of due process rights at Guantanamo has major practical significance beyond the fate of Al-Hela or Ali. For about 20 detainees, the availability of these rights would open new ways to challenge their detention and require the government to adopt new procedures. Many detainee habeas petitions—involving torture, coerced confessions, military commissions or claims conditions of confinement—would be affected. Moreover, detainees would have new options to challenge the existence of indefinite detentions.

The D.C. Circuit has many options on Al-Hela. It may affirm the panel opinion, rule along the lines of Griffith’s concurrence that the Due Process Clause’s application should not have been addressed at all, reverse the panel’s opinion and find that detainees at Guantanamo do have constitutional due process rights and those rights were violated, or do something else entirely. For those interested in the future of Guantanamo litigation, the court’s upcoming en banc rehearing of Al-Hela is one to watch.